SB1970ham002 102ND GENERAL ASSEMBLY

Rep. Jennifer Gong-Gershowitz

Filed: 5/18/2021

10200SB1970ham002 LRB102 17209 LNS 26638 a

AMENDMENT TO SENATE BILL 1970

AMENDMENT NO. ______. Amend Senate Bill 1970 by replacing everything after the enacting clause with the following:

"Section 5. The Mental Health and Developmental Disabilities Confidentiality Act is amended by adding Section 5.5 as follows:

(740 ILCS 110/5.5 new)

Sec. 5.5. Limited access to basic mental health information.

(a) Each of the following individuals is entitled, upon request, to obtain the information listed in this Section pursuant to the procedures set forth in this Section if the individual resides with the recipient or is paying for the recipient's care:

(1) the parent of a recipient;

(2) the adult sibling of a recipient;

(3) the adult child of a recipient;

(4) the spouse of a recipient, if the spouse is residing with the recipient; and

(5) the adult grandchild of the recipient.

(b) An individual listed under subsection (a) is entitled to information under this Section if:

(1) the individual provides to the inpatient mental health facility:

(i) proof of identification; and

(ii) a statement, in writing, that the individual resides with the recipient or is paying for the recipient's care, and the statement includes the individual's name, address, phone number, and relationship to the recipient, a declaration that there is no current or pending order of protection involving both the individual and the recipient, and, if the individual is the spouse of the recipient, a declaration that no action is pending between the individual and the recipient under the Illinois Marriage and Dissolution of Marriage Act; and

(2) the recipient's treating physician determines, in writing and in the exercise of the physician's professional judgment, that, at the time any disclosure is made, the recipient lacks the capacity to make a reasoned decision about the disclosure under Section 5 and that the disclosure is in the recipient's best interest. When making a decision regarding the recipient's best interest, the physician shall give substantial consideration to any prior instructions from a recipient identifying individuals with whom the recipient's information may be shared. No disclosure pursuant to this Section may be made at any time when a recipient has the capacity to make a decision about the disclosure. If the recipient regains the capacity to make a reasoned decision about the disclosure while he or she is receiving treatment in the facility, the facility shall notify the recipient of the information disclosed and the person or persons to whom it was disclosed.

This Section allows for the exchange of information between individuals residing with the recipient or individuals paying for the recipient's care and medical personnel without informed consent when the recipient lacks the capacity for informed consent. Once the recipient regains the capacity for informed consent, this Section no longer applies and any allowance for the exchange of information between individuals authorized under this Section and the medical personnel is terminated.

(c) An individual listed under subsection (a) is entitled to access the following information:

(1) whether the recipient is located at the mental health facility;

(2) plans for the discharge of the recipient, including the anticipated date and time of the discharge, if known, the address where the recipient will live, and the plans, if any, for the provision of treatment in the community following discharge for the mental health condition or conditions for which the recipient was receiving treatment at the inpatient mental health facility, including, but not limited to, medication related to the recipient's mental health condition and the identity of any person or agency that will be providing treatment to the recipient; and

(3) if the mental health facility has filed a petition for inpatient or outpatient commitment under Chapter III of the Mental Health and Developmental Disabilities Code, a copy of the petition.

(d) An individual who has received information under this Section shall not redisclose the information except as necessary to provide for the recipient's care or payment for the recipient's care. The information shall be excluded from evidence in a proceeding and may not be used in any other way, unless it is being used to assert or prove that a person is subject to an involuntary admission on an inpatient or outpatient basis or whether psychotropic medication or electroconvulsive therapy may be administered under the Mental Health and Developmental Disabilities Code or to prove that a person is a person with a disability in need of an adult guardianship proceeding under Article XIa of the Probate Act of 1975.

(e) If access or modification of the information is requested, the request, the grounds for its acceptance or denial, and any action taken thereon shall be noted in the recipient's record.

(f) No information shall be disclosed under this Section if the recipient has either designated an agent under the Powers of Attorney for Health Care Law or an attorney-in-fact under the Mental Health Treatment Preference Declaration Act who is currently authorized to receive the information set forth in subsection (c).

(g) Any person who knowingly and willfully violates any provision of this Section is guilty of a Class A misdemeanor.

(h) Nothing in this Section shall be construed to violate federal or State laws concerning informed consent.".