HB5152ham001 96TH GENERAL ASSEMBLY

Disability Services Committee

Filed: 3/10/2010

09600HB5152ham001 LRB096 19040 JDS 38431 a

AMENDMENT TO HOUSE BILL 5152

AMENDMENT NO. ______. Amend House Bill 5152 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as Brian's Law.

Section 5. Legislative Findings.

(a) As a result of decades of significant under-funding of Illinois' developmental disabilities and mental health service delivery system, the quality of life of individuals with disabilities has been negatively impacted and, in an unacceptable number of instances, has resulted in serious health consequences and even death.

(b) In response to growing concern over the safety of the State-operated developmental disability facilities, following a series of resident deaths, the agency designated by the Governor pursuant to the Protection and Advocacy for Developmentally Disabled Persons Act (hereinafter the P & A agency) opened a systematic investigation to examine all such deaths for a period of time, including the death of a young man in his twenties, Brian Kent, at Ann M. Kiley Center in Waukegan, Illinois on October 30, 2002 and released a public report, "Life and Death in State-Operated Developmental Disability Institutions," which included findings and recommendations aimed at preventing such tragedies in the future.

(c) The documentation of substandard medical care and treatment of individual residents living in the State-operated facilities cited in that report necessitate that the State of Illinois take immediate action to prevent further injuries and deaths.

(d) The P & A agency has also reviewed conditions and deaths of individuals with disabilities living in or transferred to community-based facilities and found similar problems in some of those settings.

(e) The circumstances associated with deaths in both State-operated facilities and community-based facilities, and review of the State's investigations and findings regarding these incidents, demonstrate that the current federal and state oversight and investigatory systems are seriously under-funded and are also not performing adequately at this time.

(f) An effective mortality review process enables state service systems to focus on individual deaths and consider the broader issues, policies, and practices that may contribute to these tragedies. This critical information, when shared with public and private facilities, can help to reduce circumstances that place individuals at high risk of serious harm and even death.

(g) The purpose of this Act is to establish within the Department of Human Services a low-cost, volunteer-based mortality review process conducted by an independent team of experts that will enhance the health and safety of the individuals served by Illinois' developmental disability and mental health service delivery systems.

(h) This independent team of experts will be comparable to 2 existing types of oversight teams: the Abuse Prevention Review Team created under the jurisdiction of the Department of Public Health to examine the deaths of individuals living in long-term care facilities, and Child Death Review Teams created under the jurisdiction of the Department of Children and Family Services to review the deaths of children.

Section 10. Mortality Review Process.

(a) The Department of Human Services shall develop an independent team of experts from the private sector to examine all deaths at State-operated developmental disability and mental health facilities and community-based developmental disability and mental health facilities licensed by or under the jurisdiction of the Department of Human Services.

(b) The Secretary of Human Services, in consultation with the Director of Public Health, shall appoint members to the independent team of experts, which shall consist of at least one member from each of the following categories:

1. Physicians experienced in providing medical care to individuals with developmental disabilities.

2. Physicians experienced in providing medical care to individuals with mental illness.

3. Representatives of the Department of Human Services who are not employed at the facility at which the death occurred.

4. Representatives of the Department of Public Health.

5. State's Attorneys or State's Attorneys' representatives.

6. Representatives of local law enforcement agencies.

7. Representatives of the Illinois Attorney General.

8. Psychologists or psychiatrists.

9. Representatives of local health departments.

10. Representatives of a social service or health care agency that provides services to persons with developmental disabilities and whose accreditation to provide such services is recognized by the Division of Developmental Disabilities within the Department of Human Services.

11. Representatives of a social service or health care agency that provides services to persons with mental illness and whose accreditation to provide such services is recognized by the Division of Mental Health within the Department of Human Services.

12. Representatives of an advocacy organization for persons with developmental disabilities.

13. Representatives of an advocacy organization for persons with mental illness.

14. Coroners or forensic pathologists.

15. Representatives of local hospitals, trauma centers, or providers of emergency medical services.

16. Representatives of the P & A agency.

The Secretary of Human Services shall appoint additional teams if the Secretary or the existing team determines that more teams are necessary to accomplish the purposes of this Act. The members of a team shall be appointed for 2-year staggered terms and shall be eligible for reappointment upon the expiration of their terms. Each independent team shall select a Chairperson from among its members.

(c) The independent team of experts shall examine the deaths of all individuals who have died while under the care of a State-operated developmental disability or mental health facility or a community-based developmental disability or mental health facility licensed by or under the jurisdiction of the Department of Human Services.

(d) The purpose of the independent team of experts' examination of such deaths is to do the following:

1. Assist in determining the cause and manner of the individual's death, when requested.

2. Review all actions taken by the facility, State agencies, or other entities to address the cause or causes of death and the adequacy of medical care and treatment.

3. Evaluate the means, if any, by which the death might have been prevented.

4. Report its findings to the Secretary of Human Services and make recommendations that may help to reduce the number of unnecessary deaths.

5. Promote continuing education for professionals involved in investigating and preventing the unnecessary deaths of individuals under the care of a State-operated developmental disability or mental health facility or a community-based developmental disability or mental health facility licensed by or under the jurisdiction of the Department of Human Services.

6. Make specific recommendations to the Secretary of Human Services concerning the prevention of unnecessary deaths of individuals under the care of these facilities, including changes in policies and practices that will prevent harm to individuals with disabilities, and the establishment of protocols for investigating the deaths of these individuals.

(e) The independent team of experts must examine the cases submitted to it on a quarterly basis. The team shall meet at least once in each calendar quarter if there are cases to be examined. The Department of Human Services shall forward cases within 90 days after completion of a review or an investigation into the death of an individual residing at a State-operated mental health or developmental disability facility or a community-based mental health or developmental disability facility licensed by or under the jurisdiction of the Department of Human Services.

(f) Within 90 days after receiving recommendations made by the independent team of experts under subsection (d) of this Section, the Secretary of Human Services must review those recommendations, as feasible and appropriate, and shall respond to the team in writing to explain the implementation of those recommendations.

(g) In any instance in which the independent team does not operate in accordance with established protocol, the Secretary of Human Services shall take any necessary actions to bring the team into compliance with the protocol.

Section 15. Independent team of experts' access to information.

(a) The Secretary of Human Services shall provide to the independent team of experts, on the request of the team Chairperson, all records and information in the Department's possession that are relevant to the team's examination of a death of the sort described in subsection (c) of Section 10, including records and information concerning previous reports or investigations of any matter, as determined by the team.

(b) The independent team shall have access to all records and information that are relevant to its review of a death and in the possession of a State or local governmental agency. These records and information shall include, without limitation, death certificates, all relevant medical and mental health records, records of law enforcement agency investigations, records of coroner or medical examiner investigations, records of the Department of Corrections concerning a person's parole, records of a probation and court services department, and records of a social services agency that provided services to the person who died.

Section 20. Public access to and confidentiality of information.

(a) Meetings of the independent team of experts shall be closed to the public.

(b) Records and information provided to the independent team of experts are confidential. Nothing contained in this subsection (b) prevents the sharing or disclosure of records, other than those produced by the independent team, relating or pertaining to the death of an individual.

(c) Members of the independent team of experts are not subject to examination, in any civil or criminal proceeding, concerning information presented to members of the team or opinions formed by members of the team based on that information. A person may, however, be examined concerning information provided to the team that is otherwise available to the public.

(d) Records and information produced by the team are not subject to discovery or subpoena and are not admissible as evidence in any civil or criminal proceeding. Those records and information are, however, subject to discovery or a subpoena, and are admissible as evidence to the extent they are otherwise available to the public.

Section 25. Indemnification. The State shall indemnify and hold harmless members of the independent team for all their acts, omissions, decisions, or other conduct arising out of the scope of their service on the team, except those involving willful or wanton misconduct. The method of providing indemnification shall be as provided in the State Employee Indemnification Act.

Section 30. Department's annual report. The Department of Human Services shall include in its annual report to the General Assembly a report of the activities of the independent team of experts, the results of the team's findings, categories of members of the team as provided in Section 10 of this Act which are currently vacant, recommendations made by the team to the Governor, State agencies, or other entities, and, as applicable, either (i) the implementation of the recommendations or (ii) the reasons the recommendations were not implemented.

Section 35. Rights information. The Department of Human Services shall include in its annual report to the General Assembly a report of the activities of the independent team of experts, the results of the team's findings, categories of members of the team as provided in Section 10 of this Act which are currently vacant, recommendations made by the team to the Governor, State agencies, or other entities, and, as applicable, either (i) the implementations of the recommendations or (ii) the reasons the recommendations were not implemented.

Section 90. The Open Meetings Act is amended by changing Section 2 as follows:

(5 ILCS 120/2) (from Ch. 102, par. 42)

Sec. 2. Open meetings.

(a) Openness required. All meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.

(b) Construction of exceptions. The exceptions contained in subsection (c) are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope. The exceptions authorize but do not require the holding of a closed meeting to discuss a subject included within an enumerated exception.

(c) Exceptions. A public body may hold closed meetings to consider the following subjects:

(1) The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity.

(2) Collective negotiating matters between the public body and its employees or their representatives, or deliberations concerning salary schedules for one or more classes of employees.

(3) The selection of a person to fill a public office, as defined in this Act, including a vacancy in a public office, when the public body is given power to appoint under law or ordinance, or the discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance.

(4) Evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi-adjudicative body, as defined in this Act, provided that the body prepares and makes available for public inspection a written decision setting forth its determinative reasoning.

(5) The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.

(6) The setting of a price for sale or lease of property owned by the public body.

(7) The sale or purchase of securities, investments, or investment contracts.

(8) Security procedures and the use of personnel and equipment to respond to an actual, a threatened, or a reasonably potential danger to the safety of employees, students, staff, the public, or public property.

(9) Student disciplinary cases.

(10) The placement of individual students in special education programs and other matters relating to individual students.

(11) Litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.

(12) The establishment of reserves or settlement of claims as provided in the Local Governmental and Governmental Employees Tort Immunity Act, if otherwise the disposition of a claim or potential claim might be prejudiced, or the review or discussion of claims, loss or risk management information, records, data, advice or communications from or with respect to any insurer of the public body or any intergovernmental risk management association or self insurance pool of which the public body is a member.

(13) Conciliation of complaints of discrimination in the sale or rental of housing, when closed meetings are authorized by the law or ordinance prescribing fair housing practices and creating a commission or administrative agency for their enforcement.

(14) Informant sources, the hiring or assignment of undercover personnel or equipment, or ongoing, prior or future criminal investigations, when discussed by a public body with criminal investigatory responsibilities.

(15) Professional ethics or performance when considered by an advisory body appointed to advise a licensing or regulatory agency on matters germane to the advisory body's field of competence.

(16) Self evaluation, practices and procedures or professional ethics, when meeting with a representative of a statewide association of which the public body is a member.

(17) The recruitment, credentialing, discipline or formal peer review of physicians or other health care professionals for a hospital, or other institution providing medical care, that is operated by the public body.

(18) Deliberations for decisions of the Prisoner Review Board.

(19) Review or discussion of applications received under the Experimental Organ Transplantation Procedures Act.

(20) The classification and discussion of matters classified as confidential or continued confidential by the State Government Suggestion Award Board.

(21) Discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06.

(22) Deliberations for decisions of the State Emergency Medical Services Disciplinary Review Board.

(23) The operation by a municipality of a municipal utility or the operation of a municipal power agency or municipal natural gas agency when the discussion involves (i) contracts relating to the purchase, sale, or delivery of electricity or natural gas or (ii) the results or conclusions of load forecast studies.

(24) Meetings of a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.

(25) Meetings of an independent team of experts under Brian's Law.

(d) Definitions. For purposes of this Section:

"Employee" means a person employed by a public body whose relationship with the public body constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor.

"Public office" means a position created by or under the Constitution or laws of this State, the occupant of which is charged with the exercise of some portion of the sovereign power of this State. The term "public office" shall include members of the public body, but it shall not include organizational positions filled by members thereof, whether established by law or by a public body itself, that exist to assist the body in the conduct of its business.

"Quasi-adjudicative body" means an administrative body charged by law or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon, but does not include local electoral boards when such bodies are considering petition challenges.

(e) Final action. No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.

(Source: P.A. 94-931, eff. 6-26-06; 95-185, eff. 1-1-08.)

Section 95. The Freedom of Information Act is amended by changing Section 7.5 as follows:

(5 ILCS 140/7.5)

Sec. 7.5. Statutory Exemptions. To the extent provided for by the statutes referenced below, the following shall be exempt from inspection and copying:

(a) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(b) Library circulation and order records identifying library users with specific materials under the Library Records Confidentiality Act.

(c) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(d) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(e) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(f) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(g) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(h) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act.

(i) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(j) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(k) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(l) Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.

(m) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(n) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(o) Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.

(p) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(q) Information prohibited from being disclosed by the Personnel Records Review Act.

(r) Information prohibited from being disclosed by the Illinois School Student Records Act.

(s) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(t) Records and information provided to an independent team of experts under Brian's Law.

(Source: P.A. 96-542, eff. 1-1-10.)

(405 ILCS 5/5-100A rep.)

Section 98. The Mental Health and Developmental Disabilities Code is amended by repealing Section 5-100A.".