SB2265 EngrossedLRB102 13807 CPF 19157 b

1    AN ACT concerning regulation.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Nursing Home Care Act is amended by
5changing Section 2-106.1 as follows:
6    (210 ILCS 45/2-106.1)
7    Sec. 2-106.1. Drug treatment.
8    (a) A resident shall not be given unnecessary drugs. An
9unnecessary drug is any drug used in an excessive dose,
10including in duplicative therapy; for excessive duration;
11without adequate monitoring; without adequate indications for
12its use; or in the presence of adverse consequences that
13indicate the drugs should be reduced or discontinued. The
14Department shall adopt, by rule, the standards for unnecessary
15drugs contained in interpretive guidelines issued by the
16United States Department of Health and Human Services for the
17purposes of administering Titles XVIII and XIX of the Social
18Security Act.
19    (b) Except in the case of an emergency, psychotropic
20medication shall not be administered without the informed
21consent of the resident or the resident's surrogate decision
22maker. "Psychotropic medication" means medication that is used
23for or listed as used for psychotropic, antidepressant,



SB2265 Engrossed- 2 -LRB102 13807 CPF 19157 b

1antimanic, or antianxiety behavior modification or behavior
2management purposes in the latest editions of the AMA Drug
3Evaluations or the Physician's Desk Reference. "Emergency" has
4the same meaning as in Section 1-112 of the Nursing Home Care
5Act. A facility shall (i) document the alleged emergency in
6detail, including the facts surrounding the medication's need,
7and (ii) present this documentation to the resident and the
8resident's representative. The No later than January 1, 2021,
9the Department shall adopt, by rule, a protocol specifying how
10informed consent for psychotropic medication may be obtained
11or refused. The protocol shall require, at a minimum, a
12discussion between (i) the resident or the resident's
13surrogate decision maker and (ii) the resident's physician, a
14registered pharmacist (who is not a dispensing pharmacist for
15the facility where the resident lives), or a licensed nurse,
16including, but not limited to, a licensed practical nurse,
17about the possible risks and benefits of a recommended
18medication and the use of standardized consent forms
19designated by the Department. The protocol shall include
20informing the resident, surrogate decision maker, or both of
21the existence of a copy of: the resident's care plan; the
22facility policies and procedures adopted in compliance with
23subsection (b-15) of this Section; and a notification that the
24most recent of the resident's care plans and the facility's
25policies are available to the resident or surrogate decision
26maker upon request. Each form designated or developed by the



SB2265 Engrossed- 3 -LRB102 13807 CPF 19157 b

1Department (i) shall be written in plain language, (ii) shall
2be able to be downloaded from the Department's official
3website or another website designated by the Department, (iii)
4shall include information specific to the psychotropic
5medication for which consent is being sought, and (iv) shall
6be used for every resident for whom psychotropic drugs are
7prescribed. The Department shall utilize the rules, protocols,
8and forms developed and implemented under the Specialized
9Mental Health Rehabilitation Act of 2013 in effect on the
10effective date of this amendatory Act of the 101st General
11Assembly, except to the extent that this Act requires a
12different procedure, and except that the maximum possible
13period for informed consent shall be until: (1) a change in the
14prescription occurs, either as to type of psychotropic
15medication or an increase or decrease in dosage, dosage range,
16or titration schedule of the prescribed medication that was
17not included in the original informed consent; or (2) a
18resident's care plan changes. The Department may further amend
19the rules after January 1, 2021 pursuant to existing
20rulemaking authority. In addition to creating those forms, the
21Department shall approve the use of any other informed consent
22forms that meet criteria developed by the Department. At the
23discretion of the Department, informed consent forms may
24include side effects that the Department reasonably believes
25are more common, with a direction that more complete
26information can be found via a link on the Department's



SB2265 Engrossed- 4 -LRB102 13807 CPF 19157 b

1website to third-party websites with more complete
2information, such as the United States Food and Drug
3Administration's website. The Department or a facility shall
4incur no liability for information provided on a consent form
5so long as the consent form is substantially accurate based
6upon generally accepted medical principles and if the form
7includes the website links.
8    Informed consent shall be sought from the resident. For
9the purposes of this Section, "surrogate decision maker" means
10an individual representing the resident's interests as
11permitted by this Section. Informed consent shall be sought by
12the resident's guardian of the person if one has been named by
13a court of competent jurisdiction. In the absence of a
14court-ordered guardian, informed consent shall be sought from
15a health care agent under the Illinois Power of Attorney Act
16who has authority to give consent. If neither a court-ordered
17guardian of the person nor a health care agent under the
18Illinois Power of Attorney Act is available and the attending
19physician determines that the resident lacks capacity to make
20decisions, informed consent shall be sought from the
21resident's attorney-in-fact designated under the Mental Health
22Treatment Preference Declaration Act, if applicable, or the
23resident's representative.
24    In addition to any other penalty prescribed by law, a
25facility that is found to have violated this subsection, or
26the federal certification requirement that informed consent be



SB2265 Engrossed- 5 -LRB102 13807 CPF 19157 b

1obtained before administering a psychotropic medication, shall
2thereafter be required to obtain the signatures of 2 licensed
3health care professionals on every form purporting to give
4informed consent for the administration of a psychotropic
5medication, certifying the personal knowledge of each health
6care professional that the consent was obtained in compliance
7with the requirements of this subsection.
8    (b-5) A facility must obtain voluntary informed consent,
9in writing, from a resident or the resident's surrogate
10decision maker before administering or dispensing a
11psychotropic medication to that resident. When informed
12consent is not required for a change in dosage, the facility
13shall note in the resident's file that the resident was
14informed of the dosage change prior to the administration of
15the medication or that verbal, written, or electronic notice
16has been communicated to the resident's surrogate decision
17maker that a change in dosage has occurred.
18    (b-10) No facility shall deny continued residency to a
19person on the basis of the person's or resident's, or the
20person's or resident's surrogate decision maker's, refusal of
21the administration of psychotropic medication, unless the
22facility can demonstrate that the resident's refusal would
23place the health and safety of the resident, the facility
24staff, other residents, or visitors at risk.
25    A facility that alleges that the resident's refusal to
26consent to the administration of psychotropic medication will



SB2265 Engrossed- 6 -LRB102 13807 CPF 19157 b

1place the health and safety of the resident, the facility
2staff, other residents, or visitors at risk must: (1) document
3the alleged risk in detail; (2) present this documentation to
4the resident or the resident's surrogate decision maker, to
5the Department, and to the Office of the State Long Term Care
6Ombudsman; and (3) inform the resident or his or her surrogate
7decision maker of his or her right to appeal to the Department.
8The documentation of the alleged risk shall include a
9description of all nonpharmacological or alternative care
10options attempted and why they were unsuccessful.
11    (b-15) Within 100 days after the effective date of any
12rules adopted by the Department under subsection (b) of this
13Section, all facilities shall implement written policies and
14procedures for compliance with this Section. When the
15Department conducts its annual survey of a facility, the
16surveyor may review these written policies and procedures and
18        (1) give written notice to the facility that the
19    policies or procedures are sufficient to demonstrate the
20    facility's intent to comply with this Section; or
21        (2) provide written notice to the facility that the
22    proposed policies and procedures are deficient, identify
23    the areas that are deficient, and provide 30 days for the
24    facility to submit amended policies and procedures that
25    demonstrate its intent to comply with this Section.
26    A facility's failure to submit the documentation required



SB2265 Engrossed- 7 -LRB102 13807 CPF 19157 b

1under this subsection is sufficient to demonstrate its intent
2to not comply with this Section and shall be grounds for review
3by the Department.
4    All facilities must provide training and education on the
5requirements of this Section to all personnel involved in
6providing care to residents and train and educate such
7personnel on the methods and procedures to effectively
8implement the facility's policies. Training and education
9provided under this Section must be documented in each
10personnel file.
11    (b-20) Upon the receipt of a report of any violation of
12this Section, the Department shall investigate and, upon
13finding sufficient evidence of a violation of this Section,
14may proceed with disciplinary action against the licensee of
15the facility. In any administrative disciplinary action under
16this subsection, the Department shall have the discretion to
17determine the gravity of the violation and, taking into
18account mitigating and aggravating circumstances and facts,
19may adjust the disciplinary action accordingly.
20    (b-25) A violation of informed consent that, for an
21individual resident, lasts for 7 days or more under this
22Section is, at a minimum, a Type "B" violation. A second
23violation of informed consent within a year from a previous
24violation in the same facility regardless of the duration of
25the second violation is, at a minimum, a Type "B" violation.
26    (b-30) Any violation of this Section by a facility may be



SB2265 Engrossed- 8 -LRB102 13807 CPF 19157 b

1enforced by an action brought by the Department in the name of
2the People of Illinois for injunctive relief, civil penalties,
3or both injunctive relief and civil penalties. The Department
4may initiate the action upon its own complaint or the
5complaint of any other interested party.
6    (b-35) Any resident who has been administered a
7psychotropic medication in violation of this Section may bring
8an action for injunctive relief, civil damages, and costs and
9attorney's fees against any facility responsible for the
11    (b-40) An action under this Section must be filed within 2
12years of either the date of discovery of the violation that
13gave rise to the claim or the last date of an instance of a
14noncompliant administration of psychotropic medication to the
15resident, whichever is later.
16    (b-45) A facility subject to action under this Section
17shall be liable for damages of up to $500 for each day after
18discovery of a violation that the facility violates the
19requirements of this Section.
20    (b-55) The rights provided for in this Section are
21cumulative to existing resident rights. No part of this
22Section shall be interpreted as abridging, abrogating, or
23otherwise diminishing existing resident rights or causes of
24action at law or equity.
25    (c) The requirements of this Section are intended to
26control in a conflict with the requirements of Sections 2-102



SB2265 Engrossed- 9 -LRB102 13807 CPF 19157 b

1and 2-107.2 of the Mental Health and Developmental
2Disabilities Code with respect to the administration of
3psychotropic medication.
4(Source: P.A. 101-10, eff. 6-5-19.)
5    Section 99. Effective date. This Act takes effect upon
6becoming law.