HB1462 101ST GENERAL ASSEMBLY

LRB101 00367 KTG 45372 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB1462

Introduced , by Rep. Sara Feigenholtz

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 140/7.5

Creates the Children's Mental Health Ombudsman Program Act. Provides that the Children's Mental Health Ombudsman Program (Program) is created in the Office of the Governor for specified purposes, including for the purposes of advocating on behalf of children with mental health disorders, identifying barriers to effective mental health treatment and proposed solutions; monitoring and ensuring compliance with relevant statutes, regulations, rules, and policies pertaining to children's behavioral health services; and investigating complaints that a State or a government agency has engaged in activities, practices, or omissions that constitute violations of applicable court orders, statutes, or regulations or that may have an adverse effect upon the health, safety, welfare, or rights of children. Provides that the Governor shall appoint the Children's Mental Health Ombudsman (Ombudsman). Requires the Ombudsman, in consultation with other specified persons, to establish policies and procedures as needed to facilitate compliance with the provisions of the Program, including procedures for filing, investigating, and resolving complaints. Grants the Ombudsman subpoena powers. Requires the Ombudsman to: (i) monitor federal, State, and local statutes, rules, regulations, and policies regarding services and supports for children with mental health disorders; (ii) maintain complete records of complaints received; (iii) submit annual reports to the Governor and the General Assembly on the activities of the Program; (iv) adopt rules that are necessary for performing the required activities of the Program; and other matters. Amends the Freedom of Information Act. Exempts from disclosure all information and records acquired by the Ombudsman during the performance of his or her duties.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning children.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Children's Mental Health Ombudsman Program Act.

Section 5. Definitions. As used in this Act:

"Mental health disorder" has the same meaning as "mental illness" under Section 1-129 of the Mental Health and Developmental Disabilities Code.

"Ombudsman" means the Children's Mental Health Ombudsman.

Section 10. Children's Mental Health Ombudsman Program. There is created in the Office of the Governor a Children's Mental Health Ombudsman Program for the purposes of: advocating on behalf of children with mental health disorders, and identifying barriers to effective mental health treatment and proposed solutions; monitoring and ensuring compliance with relevant statutes, regulations, rules, and policies pertaining to children's behavioral health services; and receiving, investigating, and resolving through administrative action, as described in Section 20, complaints filed by a child or by individuals legally authorized to act on behalf of a child or children or by any individual, organization, or government agency that has reason to believe that any entity regulated by the State or a government agency has engaged in activities, practices, or omissions that constitute violations of applicable court orders, statutes, rules, or regulations or that may have an adverse effect upon the health, safety, welfare, or rights of children. The Children's Mental Health Ombudsman, appointed by the Governor as provided in Section 15, has the authority to temporarily order State agencies and local educational authorities to assume full or partial responsibility for payment of costs of services for which a child has been determined eligible when the delivery of those services is delayed more than 14 days because agreement on responsibility for payment cannot be reached.

Section 15. Children's Mental Health Ombudsman; appointment. The Governor shall appoint the Children's Mental Health Ombudsman who shall be a person qualified by training and experience to perform the duties of the Children's Mental Health Ombudsman Program. The Ombudsman, in consultation with the Secretary of Human Services, the Director of Healthcare and Family Services, the Director of the Division of Mental Health within the Department of Human Services, and the State Superintendent of Education, shall establish policies and procedures as needed to facilitate compliance with the Children's Mental Health Ombudsman Program. These policies and procedures shall include procedures for filing complaints, investigating complaints, and taking action to implement resolutions to these complaints, including the use of State agency enforcement authority to resolve complaints as recommended by the Ombudsman.

Section 20. Investigations.

(a) The Children's Mental Health Ombudsman has the power to subpoena witnesses and compel the production of all documents, papers, books, records, reports, reviews, recommendations, correspondence, data, and other evidence that the Ombudsman reasonably believes is relevant to his or her investigations authorized under this Act. If any person to whom a subpoena is issued fails to appear or, having appeared, refuses to give testimony or fails to produce the evidence required, the Ombudsman may apply to any circuit court to issue an order to compel the testimony and production of documents of any such witness. The failure to comply with the order of the court issued in response thereto shall be punished as a contempt.

(b) No discriminatory or retaliatory action shall be taken against any person who communicates with or provides information to the Ombudsman. Any person who knowingly or willfully discriminates or retaliates against such a person shall be liable to such person for treble damages, costs, and attorney's fees.

(c) Notwithstanding any other law to the contrary, the disclosure of information to the Ombudsman in accordance with this Act is not prohibited. Any information considered to be confidential under State law shall be submitted for the Ombudsman's review upon the determination of the Ombudsman that the review of the information is necessary. The Ombudsman shall ensure that no information submitted for his or her review is disseminated to parties outside the Children's Mental Health Ombudsman Program, except when disclosure may be necessary to enable the Ombudsman to perform his or her duties. Under no circumstances shall the Ombudsman or any employee of the Children's Mental Health Ombudsman Program violate the confidentiality provisions of any law of this State, except as authorized under subsection (e).

Any and all information and records acquired by the Ombudsman in the exercise of his or her purposes and duties under this Act are confidential and not subject to disclosure under the Freedom of Information Act.

Information, documents, and records of the Ombudsman and the Children's Mental Health Ombudsman Program are not subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding; however, information, documents, and records otherwise available from any other source are not immune from subpoena, discovery, or introduction into evidence through these sources solely because they were presented during the Ombudsman's investigation or maintained by the Children's Mental Health Ombudsman Program.

(d) Statistical compilations of data that do not contain any information that would permit the identification of any person may be disclosed to the public.

(e) The restrictions of this Section do not preclude the Ombudsman from sharing with the Governor, the Attorney General, a United States district attorney, an agency or other agency personnel, or the chairs of the Senate Human Services Committee and the House Special Needs Services Committee the report of, or the results of, a critical incident investigation involving that agency. Any executive or legislative branch employees who receive or read such a document are bound by the confidentiality requirements of this Section.

Section 25. Duties. To ensure the goals of the Children's Mental Health Ombudsman Program, as described in Section 10, are met:

(1) the Ombudsman shall monitor the development and implementation of federal, State, and local statutes, rules, regulations, and policies regarding services and supports for children with mental health disorders, including the education of these children;

(2) the Ombudsman shall maintain complete records of complaints received, the actions taken, findings, outcomes, and recommendations in response to those complaints and other actions, including those taken by the State and private agency responses to serious complaints;

(3) each quarter, the Ombudsman shall send a report to each State agency about which complaints were received by the Ombudsman during the relevant period, listing the complaints involving that State agency that were received during the past quarter, and shall meet regularly with the Office of the Governor, the Secretary of Human Services, the Director of Healthcare and Family Services, the Director of the Division of Mental Health within the Department of Human Services, and the State Superintendent of Education, and shall report on any system-wide problems that the Ombudsman has identified, and potential solutions;

(4) the Ombudsman shall report annually, within 120 days of the end of the fiscal year, to the Governor and the General Assembly on the activities of the Children's Mental Health Ombudsman Program, including complaints that are relevant to the Ombudsman, an analysis of patterns in complaints made through the Ombudsman, and requests for assistance made through the Department of Insurance, the Department of Children and Family Services' Office of the Inspector General, and the Department of Human Services' Office of the Inspector General, and shall make recommendations for legislation, policy, or programmatic changes related to the protection of the rights of children with mental health disorders. These reports shall be publicly available and published on the Office of the Governor's website. The requirement for reporting to the General Assembly shall be satisfied by filing copies of the report as required by Section 3.1 of the General Assembly Organization Act, and filing such additional copies with the State Government Report Distribution Center for the General Assembly as is required under paragraph (t) of Section 7 of the State Library Act.

Section 30. Additional policies. The Ombudsman shall adopt rules, policies, and procedures as necessary for performing the required activities of the Children's Mental Health Ombudsman Program.

Section 35. 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 carriers under the Emergency Telephone System 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 Record 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) All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Authority due to its administration of the Illinois Health Information Exchange. The terms "identified" and "deidentified" shall be given the same meaning as in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.

(u) Records and information provided to an independent team of experts under the Developmental Disability and Mental Health Safety Act (also known as Brian's Law).

(v) Names and information of people who have applied for or received Firearm Owner's Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act.

(w) Personally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.

(x) Information which is exempted from disclosure under Section 5-1014.3 of the Counties Code or Section 8-11-21 of the Illinois Municipal Code.

(y) Confidential information under the Adult Protective Services Act and its predecessor enabling statute, the Elder Abuse and Neglect Act, including information about the identity and administrative finding against any caregiver of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult maintained in the Registry established under Section 7.5 of the Adult Protective Services Act.

(z) Records and information provided to a fatality review team or the Illinois Fatality Review Team Advisory Council under Section 15 of the Adult Protective Services Act.

(aa) Information which is exempted from disclosure under Section 2.37 of the Wildlife Code.

(bb) Information which is or was prohibited from disclosure by the Juvenile Court Act of 1987.

(cc) Recordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act.

(dd) Information that is prohibited from being disclosed under Section 45 of the Condominium and Common Interest Community Ombudsperson Act.

(ee) Information that is exempted from disclosure under Section 30.1 of the Pharmacy Practice Act.

(ff) Information that is exempted from disclosure under the Revised Uniform Unclaimed Property Act.

(gg) Information that is prohibited from being disclosed under Section 7-603.5 of the Illinois Vehicle Code.

(hh) Records that are exempt from disclosure under Section 1A-16.7 of the Election Code.

(ii) Information which is exempted from disclosure under Section 2505-800 of the Department of Revenue Law of the Civil Administrative Code of Illinois.

(jj) Information and reports that are required to be submitted to the Department of Labor by registering day and temporary labor service agencies but are exempt from disclosure under subsection (a-1) of Section 45 of the Day and Temporary Labor Services Act.

(kk) Information prohibited from disclosure under the Seizure and Forfeiture Reporting Act.

(ll) Information the disclosure of which is restricted and exempted under Section 5-30.8 of the Illinois Public Aid Code.

(mm) (ll) Records that are exempt from disclosure under Section 4.2 of the Crime Victims Compensation Act.

(nn) (ll) Information that is exempt from disclosure under Section 70 of the Higher Education Student Assistance Act.

(oo) Information that is exempt from disclosure under Section 15 of the Children's Mental Health Ombudsman Program Act.

(Source: P.A. 99-78, eff. 7-20-15; 99-298, eff. 8-6-15; 99-352, eff. 1-1-16; 99-642, eff. 7-28-16; 99-776, eff. 8-12-16; 99-863, eff. 8-19-16; 100-20, eff. 7-1-17; 100-22, eff. 1-1-18; 100-201, eff. 8-18-17; 100-373, eff. 1-1-18; 100-464, eff. 8-28-17; 100-465, eff. 8-31-17; 100-512, eff. 7-1-18; 100-517, eff. 6-1-18; 100-646, eff. 7-27-18; 100-690, eff. 1-1-19; 100-863, eff. 8-14-18; 100-887, eff. 8-14-18; revised 10-12-18.)