AUTHORITY: Implementing and authorized by the Firearm Concealed Carry Act [430 ILCS 66/95] and Sections 6-103.2 and 6-103.3 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/6-103.2 and 6-103.3].

SOURCE: Adopted by emergency rulemaking at 38 Ill. Reg. 2413, effective December 31, 2013, for a maximum of 150 days; amended at 38 Ill. Reg. 12358, effective May 29, 2014.

SUBPART A: GENERAL PROVISIONS

 

Section 150.10  Purpose

 

a)         The requirements set forth in this Part establish the criteria for reporting by various providers under Sections 6-103.2 and 6-103.3 of the Mental Health and Developmental Disabilities Code [405 ILCS 5] and Section 12(b) of the Mental Health and Developmental Disabilities Confidentiality Act [740 ILCS 110].

 

b)         The requirements set forth in this Part establish the procedures by which the Department of Human Services (DHS) shall collect information that the Illinois State Police (ISP) will be able to use to determine eligibility or continued eligibility for a Firearm Owner's Identification Card under Section 8 of the Firearm Owner's Identification Card Act (FOID Act) [430 ILCS 65].

 

Section 150.20  Incorporation by Reference

 

Any rules or standards of an agency of the United States or of a nationally-recognized organization or association that are incorporated by reference in this Part are incorporated as of the date specified and do not include any later amendments or editions.

 

Section 150.30  Definitions

 

For the purposes of this Part, the following terms are defined:

 

"Adjudicated a mentally disabled person" – The person is the subject of a determination by a court, board, commission or other lawful authority that the person, as a result of marked subnormal intelligence, mental illness, mental impairment, incompetency, condition or disease:

 

                                    presents a clear and present danger to himself, herself or others;

 

lacks the mental capacity to manage his or her own affairs or is adjudicated a disabled person as defined in Section 11a-2 of the Probate Act of 1975 [755 ILCS 5];

 

is not guilty in a criminal case by reason of insanity, mental disease or defect as provided in Section 5-2-4 of the Unified Code of Corrections [730 ILCS 5];

 

is guilty but mentally ill, as provided in Section 5-2-6 of the Unified Code of Corrections;

 

is incompetent to stand trial in a criminal case as provided in Article 104 of the Code of Criminal Procedure [725 ILCS 5];

 

is not guilty by reason of lack of mental responsibility pursuant to Articles 50a and 72b of the Uniform Code of Military Justice (10 USC 850a and 876b);

 

is a sexually violent person under Section 5(f) of the Sexually Violent Persons Commitment Act [725 ILCS 207];

 

has been found to be a sexually dangerous person under the Sexually Dangerous Persons Act [725 ILCS 205];

           

is unfit to stand trial under the Juvenile Court Act of 1987 [705 ILCS 405];

           

is not guilty by reason of insanity under the Juvenile Court Act of 1987;

 

is subject to involuntary admission as an inpatient as defined in Section 1-119 of the Mental Health and Development Disabilities Code [405 ILCS 5];

 

is subject to involuntary admissions as an outpatient as defined in Section 1-119.1 of the Mental Health and Developmental Disabilities Code;

 

is subject to judicial admission as set forth in Section 4-500 of the Mental Health and Developmental Disabilities Code; or

 

is subject to the provisions of the Interstate Agreements on Sexually Dangerous Persons Act [45 ILCS 20] (see Section 1.1 of the FOID Act).

 

"Clear and present danger" – a person who:

 

communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself or another person as determined by a clinician; or

 

demonstrates threatening physical or verbal behavior, such as violent, suicidal or assaultive threats, actions or other behavior, as determined by a clinician, school administrator or law enforcement official (see Section 1.1 of the FOID Act).

 

"Clinical psychologist" – a person licensed by the Illinois Department of Financial and Professional Regulation under the Clinical Psychologist Licensing Act [225 ILCS 15] (see 405 ILCS 5/1-103).

 

"Clinical social worker" – a person who:

                       

has a master's or doctoral degree in social work from an accredited graduate school of social work; and

 

has at least 3 years of supervised postmaster's clinical social work practice that shall include the provision of mental health services for the evaluation, treatment and prevention of mental and emotional disorders  (see 405 ILCS 5/1-122.1).

 

"Clinician"– a physician, psychiatrist, clinical psychologist or qualified examiner.

 

"Confidentiality Act" – the Mental Health and Developmental Disabilities Confidentiality Act [740 ILCS 110].

 

"Determined" – the mandated reporter has completed a formal structured evaluation and/or assessment that, in his or her clinical judgment, supports the diagnosis of developmentally disabled and/or intellectual disability.

 

"Developmentally disabled" – a person with a disability that is attributable to any other condition that results in impairment similar to that caused by an intellectual disability and that requires services similar to those required by intellectually disabled persons.  The disability must originate before the age of 18 years, be expected to continue indefinitely, and constitute a substantial handicap (see Section 1.1 of the FOID Act).  This can include an intellectual disability, autism, cerebral palsy and epilepsy.

 

"DHS" – the Illinois Department of Human Services.

 

"DPH" – the Illinois Department of Public Health.  

 

"FOID Act" – the Firearm Owner's Identification Card Act [430 ILCS 65].

 

"Intellectual disability" – significantly subaverage general intellectual functioning that exists concurrently with impairment in adaptive behavior and that originates before the age of 18 years.

 

"Involuntarily admitted" – has the meaning prescribed in Sections 1-119 and 1-119.1 of the MHDD Code (see Section 1.1 of the FOID Act).

 

"MHDD Code" – the Mental Health and Developmental Disabilities Code [405 ILCS 5].

 

"Mental health facility" – any licensed private hospital or hospital affiliate, institution or facility, or part thereof, and any facility, or part thereof, operated by the State or a political subdivision thereof that provides treatment of persons with mental illness and includes all hospitals, institutions, clinics, evaluation facilities, mental health centers, colleges, universities, long-term care facilities, and nursing homes, or parts thereof, that provides treatment of persons with mental illness whether or not the primary purpose is to provide treatment of persons with mental illness (see Section 1.1 of the FOID Act).  For purposes of this Part, an inpatient mental health facility includes:

 

State-operated mental health facility as described in Section 4 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705];

 

Psychiatric hospital as authorized by DPH;

 

The specific units of a general hospital providing psychiatric services as authorized by DPH; and

 

Residential settings. Residential settings include:

                       

Nursing homes or long-term care facilities that are considered Institutes for Mental Disease as that term is described in section 1905(i) of Title XIX of the Social Security Act (42 USC 1396d(i));

 

The specific units of a nursing home or long-term care facility authorized by DPH to provide psychiatric or behavioral healthcare;

 

The specific units of a nursing home or long-term care facility held out by the facility as providing psychiatric or behavioral health care;

 

Specialized Mental Health Rehabilitation Facilities as described in the Specialized Mental Health Rehabilitation Act of 2013 [210 ILCS 49]; and

 

A supervised transitional residential program funded by the DHS Division of Mental Health (DHS-DMH) when that level of service has been determined to be medically necessary as that term is defined by 59 Ill. Adm. Code 132. 

 

For the purposes of this Part, an outpatient mental health facility includes:

 

A community mental health agency;

 

A general hospital that does not provide inpatient psychiatric care;

 

A general hospital emergency department;

 

The portions of a psychiatric hospital (or general hospital with psychiatric services) that do not provide inpatient psychiatric services;

 

A nursing home or long-term care facility that does not provide inpatient psychiatric care;

 

A health counseling center or health clinic operated by a college or university;

 

A clinic.

 

It is possible for a facility to qualify as both an inpatient and outpatient mental health facility.

 

"National Instant Criminal Background Check System" or "NICS" – the  system that a federal firearm licensee must, with limited exceptions, contact for information on whether receipt of a firearm by a person who is not licensed under 18 USC 923 would violate federal or State law (28 CFR 25.2).

 

"Patient" –

 

a person who voluntarily receives mental health treatment as an inpatient or resident of any public or private mental health facility, unless the treatment was solely for an alcohol abuse disorder and no other secondary substance abuse disorder or mental illness; or

 

a person who voluntarily receives mental health treatment as an outpatient or is provided services by a public or private mental health facility, and who poses a clear and present danger to himself, herself or others (see Section 1.1 of the FOID Act).

 

For the purposes of this Part, a person is considered to voluntarily receive mental health services on an inpatient basis if the person is admitted:

 

On a voluntary basis as that term is used in Article IV of Chapter III of the MHDD Code;

 

On an informal basis as that term is used in Section 3-300 of the MHDD Code;

 

As a juvenile under the provisions of Article V of Chapter III of the MHDD Code;

 

On a petition, or a petition and one or more certificates, as described in Article VI, VII or VII-A of Chapter III of the MHDD Code; or

 

On a court order for detention and examination under the provisions of Section 3-607 of the MHDD Code.

 

"Physician" – any person licensed by the State of Illinois to practice medicine in all its branches and includes any person holding a temporary license, as provided in the Medical Practice Act of 1987 [225 ILCS 60].  Physician includes a psychiatrist as defined in this Section [405 ILCS 5/1-120].

 

"Psychiatrist" – a physician as defined in this Section who has successfully completed a residency program in psychiatry accredited by either the Accreditation Council for Graduate Medical Education (www.acgme.org) or the American Osteopathic Association (www.osteopathic.org) [405 ILCS 5/1-121].

 

"Qualified examiner" – a person who is:

 

A clinical social worker as defined in this Part;

 

A registered nurse with a master's degree in psychiatric nursing who has 3 years of clinical training and experience in the evaluation and treatment of mental illness that has been acquired subsequent to any training and experience that constituted a part of the degree program;

 

A licensed clinical professional counselor with a master's or doctoral degree in counseling or psychology or a similar master's or doctorate program from a regionally accredited institution who has at least 3 years of supervised post-master's clinical professional counseling experience that includes the provision of mental health services for the evaluation, treatment and prevention of mental and emotional disorders; or

 

A licensed marriage and family therapist with a master's or doctoral degree in marriage and family therapy from a regionally accredited educational institution or a similar master's program or from a program accredited by either the Commission on Accreditation for Marriage and Family Therapy Education http://www.aamft.org/imis15/content/

coamfte/About_COAMFTE.aspx) or the Council for Accreditation of Counseling & Related Educational Programs (www.cacrep.org), who has at least 3 years of supervised post-master's experience as a marriage and family therapist that includes the provisions of mental health services for the evaluation, treatment and prevention of mental and emotional disorders.

 

A social worker who is a qualified examiner shall be a licensed clinical social worker under the Clinical Social Work and Social Work Practice Act [225 ILCS 20] (see 405 ILCS 5/1-122).

 

Section 150.40  Immunity

 

a)         Any person, institution, or agency, under this Part participating in good faith in the reporting or disclosure of records and communications otherwise in accordance with this provision or with rules, regulations or guidelines issued by DHS shall have immunity from any liability, civil, criminal or otherwise, that might result by reason of the action.  For the purpose of any proceeding, civil or criminal, arising out of a report or disclosure in accordance with this provision, the good faith of any person, institution or agency so reporting or disclosing shall be presumed.  The full extent of the immunity shall apply to any person, institution or agency that fails to make a report or disclosure in the good faith belief that the report or disclosure would violate federal regulations governing the confidentiality of alcohol and drug abuse patient records under 42 USC 290dd-3 and 290ee-3 (see Confidentiality Act, Section 12(b)).

 

b)         The clinician making the determination that the person poses a clear and present danger or making the determination that the person has a developmental disability and his or her employer may not be held criminally, civilly or professionally liable for making or not making the notification required under this Section, except for willful or wanton misconduct (see Sections 6-103.2 and 6-103.1 of the MHDD Code and Section 8.1 of the FOID Act).

SUBPART B: MENTAL HEALTH FACILITY REPORTING

 

Section 150.100  Reporting

 

a)         Inpatient mental health facilities are required to report to DHS all persons who are prohibited from obtaining a FOID Card under Section 8(e), (f), (g), (r), (s) and/or (t) of the FOID Act.

 

1)         Those provisions cover the following situations:

 

A)        a person who has been a patient of a mental health facility within the past 5 years (see Section 8(e) of the FOID Act);

 

B)        a person who had been a patient in a mental health facility more than 5 years ago who has not received the certification required under Section 8(u) of the FOID Act (see Section 8(e) of the FOID Act);

 

C)        a person who is a clear and present danger to himself or herself, any other person or persons, or the community (see Section 8(f) of the FOID Act);

 

D)        a person who is intellectually disabled (see Section 8(g) of the FOID Act);

 

E)        a person who has been adjudicated as a mentally disabled person (see Section 8(r) of the FOID Act);

 

F)         a person who has been found to be developmentally disabled (see Section 8(s) of the FOID Act); or

 

G)        a person involuntarily admitted into a mental health facility (see Section 8(t) of the FOID Act).

 

2)         It should be noted that outpatient mental health facilities that provide only outpatient services must report events that would quality under Section 8(f), (g), (r), (s) and/or (t) of the FOID Act.

 

b)         Mental health facilities are required to report within 7 calendar days after a person is admitted as an inpatient or as a resident and within 7 calendar days after a person is discharged from inpatient or residential care.

 

1)         The following are several examples relating to inpatient settings that clairify when an inpatient setting is required to report to DHS:

 

A)        The person is admitted to the hospital and to the psychiatric or behavioral health unit of the hospital for evaluation and treatment of a mental illness.  The person would be reported as an admission.

 

B)        The person is admitted to the hospital and to the psychiatric or behavioral health unit of the hospital for evaluation and treatment of a mental illness and an alcohol or substance abuse issue.  The person would be reported as an admission.

 

C)        The person with mental illness is admitted to the hospital and to a non-psychiatric or behavioral health unit (e.g., intensive care unit, rehabilitation unit, etc.) of the hospital for evaluation and treatment of an injury or illness.  The hospital transfers the person to the psychiatric or behavioral health unit.  The person would be reported as an admission.

 

D)        The person with mental illness comes to the emergency department of a hospital for the mental illness and is transferred to another hospital for admission to its psychiatric or behavioral unit.  The person would not be reported by the sending hospital but is required to be reported by the receiving hospital as an admission.

 

2)         The following are several examples relating to inpatient settings that clarify when an inpatient setting is not required to report to DHS:

 

A)        The person is admitted to the hospital and to the behavioral health unit of the hospital for evaluation and treatment of only an alcohol or substance abuse issue.  The person would not be reported as an admission.

 

B)        The person is admitted to the hospital and to the psychiatric or behavioral health unit of the hospital for evaluation and treatment of a mental illness.  Upon evaluation, the person is determined to only have an alcohol or substance abuse issue.  The person would not be reported as an admission.

 

C)        The person with mental illness is admitted to the hospital and to a non-psychiatric, non-behavioral health unit (e.g., intensive care unit, rehabilitation unit, etc.) for evaluation and treatment of an injury or illness.  The hospital provides maintenance medication for the mental illness, but the person is not admitted to the psychiatric or behavioral health unit.  The person would not be reported as an admission.

 

D)        The person with mental illness comes to the emergency department of a hospital for an injury or illness, is treated and released.  The person would not be reported as an admission.

 

E)        The person with mental illness comes to the emergency department of a hospital for an injury or illness, is admitted to the hospital (non-psychiatric unit) for the injury or illness.  The person would not be reported as an admission.

 

F)         The person with mental illness comes to the emergency department of a hospital for an injury or illness and is moved to an observation area for 48 hours.  The person is treated and released.  The person would not be reported as an admission.

 

G)        The person with mental illness comes to the emergency department of a hospital for mental illness and is given a prescription for medication and a referral, but not admitted to the hospital.  The person would not be reported as an admission.

           

3)         The following are several examples relating to residential settings that clarify when a residential setting is required to report to DHS:

 

A)        The person with mental illness is admitted to a nursing home and is placed on a specialized behavioral health unit.  The person would be reported as an admission.

                                               

B)        The person with mental illness is provided outpatient treatment while living in a supervised transitional residential program.  The supervised transitional residential program would report the person as an admission.  The outpatient program would not report the person.

 

C)        The person with mental illness resides in a Specialized Mental Health Rehabilitation Facility.  The facility would report the person as an admission.

 

4)         The following are several examples relating to residential settings that clarify when a residential setting is not required to report to DHS:

 

A)        The person with mental illness is admitted for outpatient treatment at a community mental health agency or a clinic setting while living in his or her own home or apartment.  The person would not be reported.

 

B)        The person with mental illness is admitted to a nursing home for rehabilitation and/or physical therapy and is not placed in a specialized behavioral health unit.  The person would not be reported as an admission.

                                                                       

5)         An adjudication as a mentally disabled person or an involuntary admission is required to be reported within 7 calendar days after the event or knowledge of that event.  This may occur during the course of a patient's admission, resulting in a report of the admission, a report of the adjudication as a mentally disabled person, and a report upon discharge.  It is possible that for a single admission there could be several reporting events.

 

6)         When a person is determined to be a clear and present danger, he/she must be reported within 24 hours.  If a person is determined to be a clear and present danger during his/her admission to a mental health facility, both a report of an admission and a report of a clear and present danger must be made.

 

7)         When a person has been determined to be developmentally disabled, that event is required to be reported within 24 hours.  This may occur during the course of a patient's admission, resulting in a report of the admission, a report of the determination that a person is developmentally disabled, and a report upon discharge.

 

8)         To assist in meeting the reporting timeframes, DHS shall establish a web-based reporting platform.  DHS shall update its records and information and shall notify ISP.  Information disclosed under this Section shall remain privileged and confidential, and shall not be re-disclosed, except as required under Section 3.1(e) of the FOID Act, nor used for any other purpose.  The method of providing this information shall guarantee that the information is not released beyond that necessary for the purpose of this Section.

 

9)         The identity of the mental health facility reporting under this Section shall not be disclosed to the person who is the subject of the report.

 

Section 150.110  Recordkeeping

 

Persons who are reported by mental health facilities shall remain in the database unless removed under Section 150.120 or 150.500.

 

Section 150.120  Error Correcting

 

The mental health facility reporting the information shall be responsible for assuring the accuracy of the information it provides to the database and shall correct any of its errors.

SUBPART C: CLINICIAN REPORTING

 

Section 150.200  Reporting of Developmental Disabilities

 

a)         Irrespective of whether the clinician is employed by the State or privately, the clinician shall notify DHS within 24 hours after making the determination that the person has a developmental disability.

 

b)         DHS shall establish a web-based reporting platform.  DHS shall update its records and information and shall notify ISP.  Information disclosed under this Section shall remain privileged and confidential, and shall not be re-disclosed, except as required under Section 3.1(e) of the FOID Act, nor used for any other purpose.  The method of providing this information shall guarantee that the information is not released beyond that necessary for the purpose of this Section. 

 

c)         The identity of the clinician reporting under this Section shall not be disclosed to the person who is the subject of the report.

 

Section 150.210  Reporting of Clear and Present Danger

 

a)         Irrespective of whether the clinician is employed by the State or privately, the clinician shall notify DHS within 24 hours after making the determination that the person poses a clear and present danger as that term is defined in Section 1.1 of the FOID Act.

 

b)         DHS shall establish a web-based reporting platform.  DHS shall update its records and information and shall notify ISP.  Information disclosed under this Section shall remain privileged and confidential and shall not be re-disclosed, except as required under Section 3.1(e) of the FOID Act, nor used for any other purpose.  The method of providing this information shall guarantee that the information is not released beyond that necessary for the purpose of this Section.

 

c)         The identity of the clinician reporting under this Section shall not be disclosed to the person who is the subject of the report.

 

Section 150.220  Recordkeeping

 

Persons who are reported by a clinician shall permanently remain in the database unless removed under Section 150.230 or 150.500.

 

Section 150.230  Error Correcting

 

The clinician shall be responsible for assuring the accuracy of the information he or she provides to the database and shall correct any of his or her errors.

SUBPART D: DATABASE USE

 

Section 150.400  Database Use

 

a)         The information maintained in the database shall be used to assist ISP in determining eligibility for a Firearm Owner's Identification Card under the FOID Act.  The process used shall be to cross-reference entries in the DHS FOID database file against entries in the database file of FOID card applicants and current cardholders supplied by ISP.  Only those entries that are common to both database files shall be forwarded to ISP for further action.

 

b)         As provided in Section 3.1(e)(2) of the FOID Act and in the Memorandum of Understanding developed pursuant to Section 150.600, certain information may be provided to the National Instant Criminal Background Check System Index, Denied Persons Files (28 CFR 25).

 

c)         The DHS database is prohibited from additional uses not associated with the FOID Act.

SUBPART E: APPEALS

 

Section  150.500  Appeals

 

            a)         Appeals may be made by utilizing the provisions of 20 Ill. Adm. Code 1230.

 

b)         An individual whose adjudication as a mentally disabled person has been overturned by the court system may submit a copy of the court order.  Upon verification and consultation with ISP, the adjudication that has been overturned by the court order may be removed from the database.

SUBPART F: MEMORANDUM OF UNDERSTANDING

 

Section 150.600  Memorandum of Understanding

 

Pursuant to Section 3.1(e)(2) of the FOID Act, ISP and DHS shall, in accordance with State and federal law regarding confidentiality, enter into a memorandum of understanding with the Federal Bureau of Investigation for the purpose of implementing the National Instant Criminal Background Check System in this State.  ISP shall report the name, date of birth, and physical description of any person prohibited from possessing a firearm pursuant to the FOID Act or 18 USC 922(g) and (n) to the National Instant Criminal Background Check System Index, Denied Persons Files (28 CFR 25).