Public Act 103-0489
 
SB1497 EnrolledLRB103 26129 CPF 52485 b


  
    AN ACT concerning regulation.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  


 
 
    Section 5. The Nursing Home Care Act is amended  by 
changing Sections 1-112, 2-106, and 2-106.1 as follows:
 



    (210 ILCS 45/1-112)  (from Ch. 111 1/2, par. 4151-112)



    Sec. 1-112. 
"Emergency" means a situation, physical 
condition, or one or
more practices, methods, or operations 
which present imminent danger of death
or serious physical or 
mental harm to residents of a facility and are clinically 
documented in the resident's medical record.

(Source: P.A. 81-223.)

 
    (210 ILCS 45/2-106)  (from Ch. 111 1/2, par. 4152-106)


    Sec. 2-106. Restraints. 
    (a) For purposes of this Act, (i) a physical restraint is 
any
manual method or physical or
mechanical device, material, 
or equipment attached or adjacent to a
resident's body that 
the resident cannot remove easily and
restricts
freedom of 
movement or normal access to one's
body, and .  Devices used for

positioning, including but not limited to bed rails,
gait 
belts, and cushions, shall not be considered to be restraints 
for
purposes of this Section;
  (ii) a chemical restraint
is
any 
drug used for discipline or convenience and not required to 
treat medical
symptoms.  
    Devices used for
positioning, including, but not limited 
to, bed rails and
gait belts, shall not be considered to be 
physical restraints for
purposes of this Act unless the device 
is used to restrain or otherwise limit the patient's freedom 
to move. A device used for positioning must be requested by the 
resident or, if the resident is unable to consent, the 
resident's guardian or authorized representative, or the need 
for that device must be physically demonstrated by the 
resident and documented in the resident's care plan. The 
physically demonstrated need of the resident for a device used 
for positioning must be revisited in every comprehensive 
assessment of the resident. 
    The Department shall by rule, designate certain devices as

restraints,
including at least all those devices which have 
been determined
to be restraints by the United States 
Department of Health and Human Services
in
interpretive 
guidelines issued for the purposes of administering Titles 
XVIII and XIX of the Social Security Act.


    (b) Neither restraints nor confinements shall be employed

for the purpose of punishment or for the convenience of any 
facility personnel.
No restraints or confinements shall be 
employed except as ordered
by a physician who documents the 
need for such restraints or confinements
in the
resident's 
clinical record.


    (c) A restraint may be used only with the informed consent 
of the
resident, the resident's guardian, or other authorized 
representative.  A
restraint may be used only for specific 
periods, if it is the
least restrictive means necessary to 
attain and maintain the resident's highest
practicable 
physical, mental or psychosocial well-being, including brief

periods of time to provide necessary life-saving treatment.  A 
restraint may be
used only after consultation with appropriate 
health professionals, such as
occupational or physical 
therapists, and a trial of less restrictive measures
has led 
to the determination that the use of less restrictive measures

would not attain or maintain the resident's highest 
practicable physical,
mental or psychosocial well-being.

However, if the resident needs emergency care, restraints may 
be used for brief
periods to
permit medical treatment to 
proceed unless the facility has notice that the
resident has 
previously made a valid refusal of the treatment in
question.


    (d) A restraint may be applied only by a person trained in 
the application
of the particular type of restraint.


    (e) Whenever a period of use of a restraint is initiated, 
the resident shall
be advised of his or her right to have a 
person or organization of his or
her
choosing,
including the 
Guardianship and Advocacy Commission, notified of the use of 
the
restraint.  A recipient
who is under guardianship may 
request that a person or organization of his or
her choosing  be 
notified of the restraint, whether or not the guardian

approves the notice.
If the resident so chooses, the facility 
shall make the notification
within 24 hours, including any 
information
about
the period of time that the restraint is to 
be used.
Whenever the Guardianship and Advocacy Commission is 
notified that a resident
has been restrained, it shall contact 
the resident to determine the
circumstances of the restraint 
and whether further action is warranted.


    (f) Whenever a restraint is used on a resident whose 
primary mode of
communication is sign language, the resident 
shall be permitted to have his or
her
hands free from restraint 
for brief periods each hour, except when this freedom
may

result in physical harm to the resident or others.


    (g) The requirements of this Section are intended to 
control in any conflict
with the requirements of Sections

1-126 and 2-108 of the Mental Health and Developmental 
Disabilities Code.


(Source: P.A. 97-135, eff. 7-14-11.)

 
    (210 ILCS 45/2-106.1)


    Sec. 2-106.1. Drug treatment.

    (a) A resident shall not be given unnecessary drugs.  An

unnecessary drug is any drug used in an excessive dose, 
including in
duplicative therapy; for excessive duration; 
without adequate
monitoring; without adequate indications for 
its use; or in the
presence of adverse consequences that 
indicate the drugs should be reduced or
discontinued.  The 
Department shall adopt, by rule, the standards
for unnecessary

drugs
contained in interpretive guidelines issued by the 
United States Department of
Health and Human Services for the 
purposes of administering Titles XVIII and XIX of
the Social 
Security Act.


    (b) State laws, regulations, and policies related to
   
psychotropic medication are intended to ensure psychotropic  
medications are used only when the medication is appropriate  
to treat a resident's specific, diagnosed, and documented
     
condition and the medication is beneficial to the resident,
     as 
demonstrated by monitoring and documentation of the resident's
     
response to the medication. 
    (b-3) Except in the case of an emergency, psychotropic 
medication shall not be administered without the informed

consent of the resident or the resident's surrogate decision 
maker. Psychotropic medication shall only be given in both 
emergency and nonemergency situations if the diagnosis of the 
resident supports the benefit of the
     medication and clinical 
documentation
      in the resident's medical record supports the 
benefit of the
     medication over the contraindications related 
to other
     prescribed medications.  "Psychotropic medication"

means medication that
is used for or listed as used for 
psychotropic, antidepressant, antimanic, or
antianxiety 
behavior modification or behavior management purposes in the 
latest
editions of the AMA Drug Evaluations or the Physician's 
Desk Reference. "Emergency" has the same meaning as in Section 
1-112 of the Nursing Home Care Act.  A facility shall (i) 
document the alleged emergency in detail, including the facts 
surrounding the medication's need, and (ii) present this 
documentation to the resident and the resident's 
representative. The Department shall adopt, by rule, a 
protocol specifying how informed consent for psychotropic 
medication may be obtained or refused.  The protocol shall 
require, at a minimum, a discussion between (i) the resident 
or the resident's surrogate decision maker and (ii) the 
resident's physician, a registered pharmacist, or a licensed 
nurse about the possible risks and benefits of a recommended 
medication and the use of standardized consent forms 
designated by the Department. The protocol shall include 
informing the resident, surrogate decision maker, or both of 
the existence of a copy of: the resident's care plan; the 
facility policies and procedures adopted in compliance with 
subsection (b-15)  of this Section; and a notification that the 
most recent of the resident's care plans and the facility's 
policies are available to the resident or surrogate decision 
maker upon request. Each form designated or developed by the 
Department (i) shall be written in plain language, (ii) shall 
be able to be downloaded from the Department's official 
website or another website designated by the Department, (iii) 
shall include information specific to the psychotropic 
medication for which consent is being sought, and (iv) shall 
be used for every resident for whom psychotropic drugs are 
prescribed. The Department shall utilize the rules, protocols, 
and forms developed and implemented under the Specialized 
Mental Health Rehabilitation Act of 2013 in effect on the 
effective date of this amendatory Act of the 101st General 
Assembly, except to the extent that this Act requires a 
different procedure, and except that the maximum possible 
period for informed consent shall be until: (1) a change in the 
prescription occurs, either as to type of psychotropic 
medication or an increase or decrease in dosage, dosage range, 
or titration schedule of the prescribed medication that was 
not included in the original informed consent; or (2) a 
resident's care plan changes. The Department may further amend 
the rules after January 1, 2021 pursuant to existing 
rulemaking authority.  In addition to creating those forms, the 
Department shall approve the use of any other informed consent 
forms that meet criteria developed by the Department. At the 
discretion of the Department, informed consent forms may 
include side effects that the Department reasonably believes 
are more common, with a direction that more complete 
information can be found via a link on the Department's 
website to third-party websites with more complete 
information, such as the United States Food and Drug 
Administration's website. The Department or a facility shall 
incur no liability for information provided on a consent form 
so long as the consent form is substantially accurate based 
upon generally accepted medical principles and if the form 
includes the website links.
    Informed consent shall be sought from the resident.  For 
the purposes of this Section, "surrogate decision maker" means 
an individual representing the resident's interests as 
permitted by this Section. Informed consent shall be sought by 
the resident's guardian of the person if one has been named by 
a court of competent jurisdiction. In the absence of a 
court-ordered guardian, informed consent shall be sought from 
a health care agent under the Illinois Power of Attorney Act 
who has authority to give consent. If neither a court-ordered 
guardian of the person nor a health care agent under the 
Illinois Power of Attorney Act is available and the attending 
physician determines that the resident lacks capacity to make 
decisions, informed consent shall be sought from the 
resident's attorney-in-fact designated under the Mental Health 
Treatment Preference Declaration Act, if applicable, or the 
resident's representative.
    In addition to any other penalty prescribed by law, a 
facility that  is found to have violated this subsection, or 
the federal certification requirement that informed consent be 
obtained before administering a psychotropic medication, shall 
thereafter be required to obtain the signatures of 2 licensed 
health care professionals on every form purporting to give 
informed consent for the administration of a psychotropic 
medication, certifying the personal knowledge of each health 
care professional that the consent was obtained in compliance 
with the requirements of this subsection. 

    (b-5) A facility must obtain voluntary informed consent, 
in writing, from a resident or the resident's surrogate 
decision maker before administering or dispensing a 
psychotropic medication to that resident. When informed 
consent is not required for a change in dosage, the facility 
shall note in the resident's file that the resident was 
informed of the dosage change prior to the administration of 
the medication or that verbal, written, or electronic notice 
has been communicated to the resident's surrogate decision 
maker that a change in dosage has occurred. 
    (b-10)  No facility shall deny continued residency to a 
person on the basis of the person's or resident's, or the 
person's or resident's surrogate decision maker's, refusal of 
the administration of psychotropic medication, unless the 
facility can demonstrate that the resident's refusal would 
place the health and safety of the resident, the facility 
staff, other residents, or visitors at risk.
    A facility that alleges that the resident's refusal to 
consent to the administration of psychotropic medication will 
place the health and safety of the resident, the facility 
staff, other residents, or visitors at risk must: (1) document 
the alleged risk in detail; (2) present this documentation to 
the resident or the resident's surrogate decision maker, to 
the Department, and to the Office of the State Long Term Care 
Ombudsman; and (3) inform the resident or his or her surrogate 
decision maker of his or her right to appeal to the Department. 
The documentation of the alleged risk shall include a 
description of all nonpharmacological or alternative care 
options attempted and why they were unsuccessful.
    (b-15) Within 100 days after the effective date of any 
rules adopted by the Department under subsection (b-3) (b) of 
this Section, all facilities shall implement written policies 
and procedures for compliance with this Section. When the 
Department conducts its annual survey of a facility, the 
surveyor may review these written policies and procedures and 
either:
        (1) give written notice to the facility that the 
    policies or procedures are sufficient to demonstrate the 
    facility's intent to comply with this Section; or
        (2) provide written notice to the facility that the 
    proposed policies and procedures are deficient, identify 
    the areas that are deficient, and provide 30 days for the 
    facility to submit amended policies and procedures that 
    demonstrate its intent to  comply with this Section.
    A facility's failure to submit the documentation required 
under this subsection is sufficient to demonstrate its intent 
to not comply with this Section and shall be grounds for review 
by the Department.
    All facilities must provide training and education on the 
requirements of this Section to all personnel involved in 
providing care to residents and train and educate such 
personnel on the methods and procedures to effectively 
implement the facility's policies.  Training and education 
provided under this Section must be documented in each 
personnel file.
    (b-20)   Upon the receipt of a report of any violation of 
this Section, the Department shall investigate and, upon 
finding sufficient evidence of a violation of this Section, 
may proceed with disciplinary action against the licensee of 
the facility. In any administrative disciplinary action under 
this subsection, the Department shall have the discretion to 
determine the gravity of the violation and, taking into 
account mitigating and aggravating circumstances and facts, 
may adjust the disciplinary action accordingly.
    (b-25) A violation of informed consent that, for an 
individual resident, lasts for 7 days or more under this 
Section is, at a minimum, a Type "B" violation. A second 
violation of informed consent within a year from a previous 
violation in the same facility regardless of the duration of 
the second violation is, at a minimum, a Type "B" violation.
    (b-30) Any violation of this Section by a facility may be 
enforced by an action brought by the Department in the name of 
the People of Illinois for injunctive relief, civil penalties, 
or both injunctive relief and civil penalties. The Department 
may initiate the action upon its own complaint or the 
complaint of any other interested party.
    (b-35) Any resident who has been administered a 
psychotropic medication in violation of this Section may bring 
an action for injunctive relief, civil damages, and costs and 
attorney's fees against any facility responsible for the 
violation.
    (b-40) An action under this Section must be filed within 2 
years of either the date of discovery of the violation that 
gave rise to the claim or the last date of an instance of a 
noncompliant administration of psychotropic medication to the 
resident, whichever is later.
    (b-45) A facility subject to action under this Section 
shall be liable for damages of up to $500 for each day after 
discovery of a violation that the facility violates the 
requirements of this Section.
    (b-55) The rights provided for in this Section are 
cumulative to existing resident rights. No part of this 
Section shall be interpreted as abridging, abrogating, or 
otherwise diminishing existing resident rights or causes of 
action at law or equity.
    (c) The requirements of
this Section are intended to 
control in a conflict
with the requirements of Sections 2-102 
and 2-107.2
of the Mental Health and Developmental 
Disabilities Code with respect to the
administration of 
psychotropic medication.


    (d) In this Section only, "licensed nurse" means an 
advanced practice registered nurse, a registered nurse, or a 
licensed practical nurse. 
(Source: P.A. 101-10, eff. 6-5-19; 102-646, eff. 8-27-21.)