(405 ILCS 45/3) (from Ch. 91 1/2, par. 1353)

Sec. 3. Powers and duties.

(A) In order to properly exercise its powers and duties, the agency shall have the authority to:

(1) Investigate incidents of abuse and neglect of mentally ill persons if the incidents are reported to the agency or if there is probable cause to believe that the incidents occurred. In case of conflict with provisions of the Abused and Neglected Child Reporting Act or the Nursing Home Care Act, the provisions of those Acts shall apply.

(2) Pursue administrative, legal and other appropriate remedies to ensure the protection of the rights of mentally ill persons who are receiving care and treatment in this State.

(3) Pursue administrative, legal and other remedies on behalf of an individual who:

(a) was a mentally ill individual; and

(b) is a resident of this State, but only with respect to matters which occur within 90 days after the date of the discharge of such individual from a facility providing care and treatment.

(4) Establish a board which shall:

(a) advise the protection and advocacy system on policies and priorities to be carried out in protecting and advocating the rights of mentally ill individuals; and

(b) include attorneys, mental health professionals, individuals from the public who are knowledgeable about mental illness, a provider of mental health services, individuals who have received or are receiving mental health services and family members of such individuals. At least one-half the members of the board shall be individuals who have received or are receiving mental health services or who are family members of such individuals.

(5) On January 1, 1988, and on January 1 of each succeeding year, prepare and transmit to the Secretary of the United States Department of Health and Human Services and to the Illinois Secretary of Human Services a report describing the activities, accomplishments and expenditures of the protection and advocacy system during the most recently completed fiscal year.

(B) The agency shall have access to all mental health facilities as defined in Sections 1-107 and 1-114 of the Mental Health and Developmental Disabilities Code, all facilities as defined in Section 1-113 of the Nursing Home Care Act, all facilities as defined in Section 1-102 of the Specialized Mental Health Rehabilitation Act of 2013, all facilities as defined in Section 1-113 of the ID/DD Community Care Act, all facilities as defined in Section 1-113 of the MC/DD Act, all facilities as defined in Section 2.06 of the Child Care Act of 1969, as now or hereafter amended, and all other facilities providing care or treatment to mentally ill persons. Such access shall be granted for the purposes of meeting with residents and staff, informing them of services available from the agency, distributing written information about the agency and the rights of persons who are mentally ill, conducting scheduled and unscheduled visits, and performing other activities designed to protect the rights of mentally ill persons.

(C) The agency shall have access to all records of mentally ill persons who are receiving care or treatment from a facility, subject to the limitations of this Act, the Mental Health and Developmental Disabilities Confidentiality Act, the Nursing Home Care Act and the Child Care Act of 1969, as now or hereafter amended. If the mentally ill person has a legal guardian other than the State or a designee of the State, the facility director shall disclose the guardian's name, address and telephone number to the agency upon its request. In cases of conflict with provisions of the Abused and Neglected Child Reporting Act and the Nursing Home Care Act, the provisions of the Abused and Neglected Child Reporting Act and the Nursing Home Care Act shall apply. The agency shall also have access, for the purpose of inspection and copying, to the records of a mentally ill person (i) who by reason of his or her mental or physical condition is unable to authorize the agency to have such access; (ii) who does not have a legal guardian or for whom the State or a designee of the State is the legal guardian; and (iii) with respect to whom a complaint has been received by the agency or with respect to whom there is probable cause to believe that such person has been subjected to abuse or neglect.

The agency shall provide written notice to the mentally ill person and the State guardian of the nature of the complaint based upon which the agency has gained access to the records. No record or the contents of the record shall be redisclosed by the agency unless the person who is mentally ill and the State guardian are provided 7 days advance written notice, except in emergency situations, of the agency's intent to redisclose such record. Within such 7-day period, the mentally ill person or the State guardian may seek an injunction prohibiting the agency's redisclosure of such record on the grounds that such redisclosure is contrary to the interests of the mentally ill person.

Upon request, the authorized agency shall be entitled to inspect and copy any clinical or trust fund records of mentally ill persons which may further the agency's investigation of alleged problems affecting numbers of mentally ill persons. When required by law, any personally identifiable information of mentally ill persons shall be removed from the records. However, the agency may not inspect or copy any records or other materials when the removal of personally identifiable information imposes an unreasonable burden on any facility as defined by the Mental Health and Developmental Disabilities Code, the Nursing Home Care Act, the Specialized Mental Health Rehabilitation Act of 2013, or the Child Care Act of 1969, or any other facility providing care or treatment to mentally ill persons.

(D) Prior to instituting any legal action in a federal or State court on behalf of a mentally ill individual, an eligible protection and advocacy system, or a State agency or nonprofit organization which entered into a contract with such an eligible system under Section 104(a) of the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986, shall exhaust in a timely manner all administrative remedies where appropriate. If, in pursuing administrative remedies, the system, State agency or organization determines that any matter with respect to such individual will not be resolved within a reasonable time, the system, State agency or organization may pursue alternative remedies, including the initiation of appropriate legal action.

(Source: P.A. 98-104, eff. 7-22-13; 99-180, eff. 7-29-15.)