HB5084 93RD GENERAL ASSEMBLY

LRB093 15481 AMC 41084 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB5084

Introduced 02/05/04, by Mary E. Flowers

SYNOPSIS AS INTRODUCED:

New Act
225 ILCS 60/45	from Ch. 111, par. 4400-45

Creates the Medical Error Reporting Law. Requires a health care facility to develop and implement a patient safety plan for the purpose of improving the health and safety of patients at the facility. Requires a health care facility to report to the Department of Public Health every serious preventable adverse incident that occurs in that facility. Provides that a health care facility shall ensure that the patient affected by a serious preventable adverse incident is informed of the serious preventable adverse incident. Creates the Health Care Practitioner Reporting Law. Requires certain persons and entities to promptly report incidents when a health care practitioner has caused injury or death to a patient while practicing within the scope of that practitioner's profession or for violation of Section 11-501 of the Illinois Vehicle Code to the appropriate licensing board having jurisdiction over the health care practitioner. Imposes criminal penalties for false reports. Creates the Health Care Consumer Information Law. Requires the Department of Public Health, in consultation with the Medical Licensing Board and the Podiatric Medical Licensing Board, to collect and maintain information concerning all physicians and podiatrists licensed in this State for the purpose of creating a profile of each physician and podiatrist. Provides that the profiles shall be made available to the public. Provides what information must be included in the profiles and what physicians may include. Provides that the Department shall contract with a public or private entity for the purpose of developing, administering, and maintaining the physician and podiatrist profiles required pursuant to the Law. Requires the Director of Public Health to report on the status of the physician and podiatrist profiles to the General Assembly. Amends the Medical Practice Act of 1987 to allow for collection of information needed to complete the physician profiles. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning health care.

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

Article 5.

Section 5-1. Short title. This Article may be cited as the Medical Error Reporting Law.

Section 5-5. Findings. The General Assembly finds and declares that:

(1) adverse incidents, some of which are the result of preventable errors, are inherent in all systems;

(2) well-designed systems have processes built in to minimize the occurrence of errors, as well as to detect those that do occur; they incorporate mechanisms to continually improve their performance;

(3) to enhance patient safety, the goal is to craft a health care delivery system that minimizes, to the greatest extent feasible, the harm to patients that results from the delivery system itself;

(4) an important component of a successful patient safety strategy is a feedback mechanism that allows detection and analysis not only of adverse incidents, but also of "near-misses";

(5) to encourage disclosure of these incidents so that they can be analyzed and used for improvement, it is critical to create a non-punitive culture that focuses on improving processes rather than assigning blame;

(6) under current Illinois law, hospitals are required to investigate any unusual incidents that occur at any time on a patient care unit and summarized reports of these unusual incidents are to be made available to the Department of Public Health;

(7) governing boards of hospitals are responsible for the establishment of policy for the investigation of unusual incidents that may occur;

(8) hospitals are required to maintain accurate, current, and complete personnel records for each employee, including current and background information sufficient to justify the initial and continuing employment of the individual;

(9) hospitals are routinely denied information about prospective employees from their former employers with regard to patient error or unusual incidents because these former employers fear that their former employees may file defamation or other civil lawsuits; and

(10) by establishing an environment that both mandates the confidential disclosure of the most serious preventable adverse incidents and encourages the voluntary, anonymous and confidential disclosure of less serious adverse incidents, as well as preventable incidents and near-misses, the State seeks to increase the amount of information on systems failures, analyze the sources of these failures, and disseminate information on effective practices for reducing systems failures and improving the safety of patients.

Section 5-10. Definitions. As used in this Law:

"Adverse incident" means an unusual incident that is a negative consequence of care that results in unintended injury or illness, which may or may not have been preventable.

"Anonymous" means that information is presented in a form and manner that prevents the identification of the person filing the report.

"Department" means the Department of Public Health.

"Director" means the Director of Public Health.

"Incident" means a discrete, auditable, and clearly defined occurrence.

"Health care facility" means a facility or institution, whether public or private, engaged principally in providing services for health maintenance organizations or in diagnosis of treatment of human disease, pain, injury, deformity, or physical condition, including, but not limited to, a general hospital, special hospital, mental hospital, public health center, diagnostic center, treatment center, rehabilitation center, extended care facility, skilled nursing home, nursing home, intermediate care facility, tuberculosis hospital, chronic disease hospital, maternity hospital, outpatient clinic, dispensary, home health care agency, residential health care facility, and bioanalytical laboratory (except as specifically excluded hereunder) or central services facility serving one or more such institutions but excluding institutions that provide healing solely by prayer and excluding such bioanalytical laboratories as are independently owned and operated, and are not owned, operated, managed or controlled, in whole or in part, directly or indirectly by any one or more health care facilities, and the predominant source of business of which is not by contract with health care facilities within the State.

"Health care professional" means an individual who, acting within the scope of his or her licensure or certification, provides health care services and includes, but is not limited to, a physician, dentist, nurse, pharmacist, or other health care professional whose professional practice is regulated pursuant to Chapter 225 of the Illinois Compiled Statutes.

"Near-miss" means an occurrence that could have resulted in an adverse incident but the adverse incident was prevented.

"Preventable incident" means an incident that could have been anticipated and prepared against, but occurs because of an error or other system failure.

"Serious preventable adverse incident" means an adverse incident that is a preventable incident and results in death or loss of a body part, or disability or loss of bodily function lasting more than 7 days or still present at the time of discharge from a health care facility.

Section 5-15. Patient safety plan.

(a) In accordance with the requirements established by the Director by rule, a health care facility shall develop and implement a patient safety plan for the purpose of improving the health and safety of patients at the facility.

(b) The patient safety plan shall, at a minimum, include all of the following:

(1) A patient safety committee, as prescribed by rule.

(2) A process for teams of facility staff, which teams are comprised of personnel who are representative of the facility's various disciplines and have appropriate competencies, to conduct ongoing analysis and application of evidence-based patient safety practices in order to reduce the probability of adverse incidents resulting from exposure to the health care system across a range of diseases and procedures.

(3) A process for teams of facility staff, which teams are comprised of personnel who are representative of the facility's various disciplines and have appropriate competencies, to conduct analyses of near-misses, with particular attention to serious preventable adverse incidents and adverse incidents.

(4) A process for the provision of ongoing patient safety training for facility personnel.

(c) Any documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to this Section concerning preventable incidents, near-misses, and adverse incidents, including serious preventable adverse incidents, and any document or oral statement that constitutes the disclosure provided to a patient or the patient's family member or guardian pursuant to subsection (b) of Section 5-20, shall not be (i) subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding or (ii) used in an adverse employment action or in the evaluation of decisions made in relation to accreditation, certification, credentialing, or licensing of an individual, which is based on the individual's participation in the development, collection, reporting, or storage of information in accordance with this Section. The provisions of this subsection shall not be construed to limit a health care facility from taking disciplinary action against a health care professional in a case in which the professional has displayed recklessness, gross negligence, or willful misconduct or in which there is evidence, based on other similar cases known to the facility, of a pattern of significant substandard performance that resulted in serious preventable adverse incidents.

Section 5-20. Reports; use of information.

(a) A health care facility must report to the Department in a form and manner established by the Director every serious preventable adverse incident that occurs in that facility.

(b) A health care facility shall ensure that the patient affected by a serious preventable adverse incident, or, in the case of a minor or a patient who is incapacitated, the patient's parent or guardian or other family member, as appropriate, is informed of the serious preventable adverse incident, no later than the end of the episode of care, or, if discovery occurs after the end of the episode of care, in a timely fashion as established by the Director by rule. If the patient's physician determines, in accordance with criteria established by the Director by rule, that the disclosure would seriously and adversely affect the patient's health, then the facility shall notify the family member, if available. In the event that an adult patient is not informed of the serious preventable adverse incident, the facility shall ensure that the physician includes a statement in the patient's medical record that provides the reason for not informing the patient pursuant to this Section.

(c) A health care professional or other employee of a health care facility is encouraged to make anonymous reports to the Department in a form and manner established by the Director regarding near-misses, preventable incidents, and adverse incidents that are otherwise not subject to mandatory reporting pursuant to subsection (a) of this Section. The Director shall establish procedures for and a system to collect, store, and analyze information voluntarily reported pursuant to this subsection. The repository shall function as a clearinghouse for trend analysis of the information collected pursuant to this subsection.

(d) Any documents, materials, or information received by the Department pursuant to the provisions of subsections (a) and (c) of this Section concerning serious preventable adverse incidents, near-misses, preventable incidents, and adverse incidents that are otherwise not subject to mandatory reporting pursuant to subsection (a) of this Section shall not be (i) subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding, (ii) considered a public record under the Freedom of Information Act, or (iii) used in an adverse employment action or in the evaluation of decisions made in relation to accreditation, certification, credentialing, or licensing of an individual, which is based on the individual's participation in the development, collection, reporting, or storage of information in accordance with this Section. The provisions of this subsection shall not be construed to limit a health care facility from taking disciplinary action against a health care professional in a case in which the professional has displayed recklessness, gross negligence, or willful misconduct or in which there is evidence, based on other similar cases known to the facility, of a pattern of significant substandard performance that resulted in serious preventable adverse incidents.

The information received by the Department may be used by the Department and the Attorney General for the purposes of this Law and for oversight of facilities and health care professionals. The Department and the Attorney General shall not use the information for any other purpose. In using the information to exercise oversight, the Department and the Attorney General shall place primary emphasis on ensuring effective corrective action by the facility or health care professional, reserving punitive enforcement or disciplinary action for those cases in which the facility or the professional has displayed recklessness, gross negligence, or willful misconduct or in which there is evidence, based on other similar cases known to the Department or the Attorney General, of a pattern of significant substandard performance that has the potential for or actually results in harm to patients.

Section 5-25. Rules. The Director shall adopt any rules necessary to carry out the provisions of this Article. The regulations shall establish: criteria for a health care facility's patient safety plan and patient safety committee; the time frame and format for mandatory reporting of serious preventable adverse incidents at a health care facility; the types of incidents that qualify as serious preventable adverse incidents; and the circumstances under which a health care facility is not required to inform a patient or the patient's family about a serious preventable adverse incident. In establishing the criteria for reporting serious preventable adverse incidents, the Director shall, to the extent feasible, use criteria for these incidents that have been or are developed by organizations engaged in the development of nationally recognized standards.

Section 5-30. Report to General Assembly. The Director of Public Health shall issue an annual report to the General Assembly, which is also available to the general public, no later than 18 months after the effective date of this Law on the status of patient safety plans established by health care facilities subject to this Law and information reported to the Department as required by this Law or which is voluntarily reported as permitted by this Law regarding serious preventable adverse incidents that occur in health care facilities subject to this Law.

Article 10.

Section 10-1. Short title. This Article may be cited as the Health Care Practitioner Reporting Law.

Section 10-5. Definition. As used in this Law, "health care practitioner" means any licensed professional that provides health care services. "Health care practitioner" includes a physician, dentist, podiatrist, advanced practice nurse, physician assistant, clinical psychologist, and clinical social worker.

Section 10-10. Reporting.

(a) A law enforcement agency or other government agency that receives a complaint alleging that a State licensed health care practitioner caused injury or death to a patient while practicing within the scope of that practitioner's profession shall promptly report the information contained in the complaint to the appropriate licensing board having jurisdiction over the health care practitioner and to the patient safety committee of the health care facility where the health care practitioner practices, which is established under Section 5-15 of the Medical Error Reporting Law.

(b) An employee of a health care practitioner licensed pursuant to Chapter 225 of the Illinois Compiled Statutes who, as a result of information obtained in the course of his or her employment, has reasonable cause to suspect that the health care practitioner, in the course of his or her professional duties, has caused injury or death to a patient shall promptly report the information to the appropriate licensing board having jurisdiction over the health care practitioner.

(c) An employee of a licensed health care facility who, as a result of information obtained in the course of his or her employment, has reasonable cause to suspect that a health care practitioner licensed pursuant to Chapter 225 of the Illinois Compiled Statutes, in the course of his or her professional duties in the health care facility, has caused injury or death to a patient shall promptly report the information to the appropriate licensing board having jurisdiction over the health care practitioner. An employee may not be fired or terminated by his or her employer in retaliation for complying with this mandatory reporting requirement.

(d) The name of any person who reports information concerning a health care practitioner pursuant to this Section shall not be disclosed without the person's consent, unless an administrative or judicial proceeding results from the report.

(e) A person who reports information pursuant to this Section or who testifies in any administrative or judicial proceeding arising from the report shall have immunity from any civil or criminal liability on account of the report or testimony, unless the person has acted in bad faith or with malicious purpose.

(f) Any person who falsely reports information under this Law shall be guilty of a Class A misdemeanor.

(g) A law enforcement agency that arrests a State licensed health care practitioner for a crime or for a violation of Section 11-501 of the Illinois Vehicle Code shall promptly report that information to the appropriate licensing board having jurisdiction over the health care practitioner.

(h) A court in this State that convicts a State licensed health care practitioner for a crime or for a violation of Section 11-501 of the Illinois Vehicle Code shall promptly report that information to the appropriate licensing board having jurisdiction over the health care practitioner.

Section 10-15. Rules. The Attorney General shall adopt rules pursuant to the Illinois Administrative Procedure Act to carry out the purposes of this Article.

Article 15.

Section 15-1. Short title. This Article may be cited as the Health Care Consumer Information Law.

Section 15-5. Definitions. As used in this Law:

"Board" means the Medical Licensing Board in the case of a physician and the Podiatric Medical Licensing Board in the case of a podiatrist.

"Department" means the Department of Public Health.

Section 15-10. Profiles.

(a) The Department of Public Health, in consultation with the Medical Licensing Board and the Podiatric Medical Licensing Board, shall, within 180 days after the effective date of this Law and thereafter, collect and maintain information concerning all physicians and podiatrists licensed in this State for the purpose of creating a profile of each physician and podiatrist pursuant to this Law. The profiles shall be made available to the public through electronic and other appropriate means, at no charge to the public. The Department shall establish a toll-free telephone number for members of the public to contact the Department to obtain a paper copy of a physician or podiatrist profile and to make other inquiries about the profiles.

(b) A physician or podiatrist shall be required to provide the Board or Department or its designated agent with any information necessary to complete the profile as provided in Section 20-15 of this Law.

(c) The Board may request any additional information it deems necessary to complete the profiles on the biennial license renewal form submitted by physicians and podiatrists.

(d) The Board shall provide to the Department or its designated agent any information required pursuant to this Law that is available to the Board concerning a physician or podiatrist for the purpose of creating the physician and podiatrist profiles.

Section 15-15. Information in profile.

(a) The following information must be included for each profile of a physician or podiatrist:

(1) Name of all medical schools attended and dates of graduation.

(2) Graduate medical education, including all internships, residencies, and fellowships.

(3) Number of years in practice.

(4) Number of years in practice in Illinois.

(5) Location of the physician's or podiatrist's office practice site or sites, as applicable.

(6) A description of any criminal convictions for felonies within the most recent 10 years. For the purposes of this item, a person shall be deemed to be convicted of a crime if the individual pleaded guilty or was found or adjudged guilty by a court of competent jurisdiction. The description of criminal convictions shall not include any convictions that have been expunged.

(7) A description of any final Board disciplinary actions within the most recent 10 years, except that any such disciplinary action that is being appealed shall be identified.

(8) A description of any final disciplinary actions by appropriate licensing boards in other states within the most recent 10 years, except that any such disciplinary action that is being appealed shall be identified.

(9) A description of the revocation or involuntary restriction of privileges at a health care facility for reasons related to the practitioner's competence or misconduct or impairment taken by a health care facility's governing body or any other official of the health care facility after procedural due process has been afforded; the resignation from or nonrenewal of medical staff membership at the health care facility for reasons related to the practitioner's competence or misconduct or impairment; or the restriction of privileges at a health care facility taken in lieu of or in settlement of a pending disciplinary case related to the practitioner's competence or misconduct or impairment. Only those cases that have occurred within the most recent 10 years shall be included in the profile.

(10) All medical malpractice court judgments and all medical malpractice arbitration awards in which a payment has been awarded to the complaining party during the most recent 5 years and all settlements of medical malpractice claims in which a payment is made to the complaining party within the most recent 5 years, as follows:

(A) Pending medical malpractice claims shall not be included in the profile and information on pending medical malpractice claims shall not be disclosed to the public.

(B) A medical malpractice judgment that is being appealed shall be so identified.

(C) The context in which the payment of a medical malpractice claim occurs shall be identified by categorizing the number of judgments, arbitration awards, and settlements against the physician or podiatrist into 3 graduated categories: average, above average, and below average number of judgments, arbitration awards, and settlements. These groupings shall be arrived at by comparing the number of an individual physician's or podiatrist's medical malpractice judgments, arbitration awards, and settlements to the experience of other physicians or podiatrists within the same speciality.

(D) The following statement shall be included with the information concerning medical malpractice judgments, arbitration awards, and settlements: "Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.".

(b) If requested by a physician or podiatrist, the following information may be included in a physician's or podiatrist's profile:

(1) Names of the hospitals where the physician or podiatrist has privileges.

(2) Appointments of the physician or podiatrist to medical school faculties within the most recent 10 years.

(3) Information regarding any nationally recognized specialty board certification or accreditation by any national professional organization.

(4) Information regarding any translating services that may be available at the physician's or podiatrist's office practice site or languages other than English that are spoken by the physician or podiatrist.

(5) Information regarding whether the physician or podiatrist participates in the Medicaid program or accepts assignment under the Medicare program.

(6) Information regarding the medical insurance plans in which the physician or podiatrist is a participating provider.

(7) Information concerning the hours during which the physician or podiatrist conducts his or her practice.

(8) Information concerning accessibility of the practice site to persons with disabilities.

The following disclaimer shall be included with the information supplied by the physician or podiatrist pursuant to this subsection: "This information has been provided by the physician (or podiatrist) but has not been independently verified by the Medical Licensing Board or the Department of Public Health."

If the physician or podiatrist includes information regarding medical insurance plans in which the practitioner is a participating provider, the following disclaimer shall be included with that information: "This information may be subject to change. Contact your health benefits plan to verify whether the physician (or podiatrist) currently participates in the plan."

(c) Before a profile is made available to the public, each physician or podiatrist shall be provided with a copy of his or her profile. The profile shall be sent to the physician or podiatrist by certified mail, return receipt requested. The physician or podiatrist shall be given 30 calendar days to correct a factual inaccuracy that may appear in the profile and return it to the Department of Public Health or its designated agent; however, upon receipt of a written request that the Department or its designated agent deems reasonable, the physician or podiatrist may be granted an extension of up to 15 calendar days to correct a factual inaccuracy and return the corrected profile to the Department or its designated agent.

(d) If new information or a change in existing information is received by the Department concerning a physician or podiatrist, the physician or podiatrist shall be provided with a copy of the proposed revision and shall be given 30 calendar days to correct a factual inaccuracy and to return the corrected information to the Department or its designated agent.

(e) The profile and any revisions thereto shall not be made available to the public until after the review period provided for in this Section has elapsed.

Section 15-20. Contract.

(a) The Department shall contract with a public or private entity for the purpose of developing, administering, and maintaining the physician and podiatrist profiles required pursuant to this Law. The contract shall specify the duties and responsibilities of the entity with respect to the development, administration, and maintenance of the profile. The contract shall specify the duties and responsibilities of the Department with respect to providing the information required pursuant to Section 20-15 of this Law to the entity on a regular and timely basis. The contract shall specify that any identifying information concerning a physician or podiatrist provided to the entity by the Department, the Board, or the physician or podiatrist shall be used only for the purpose of the profile.

(b) The Department shall monitor the work of the entity to ensure that physician and podiatrist profiles are properly developed and maintained pursuant to the requirements of this Law.

Section 15-25. Report to General Assembly. The Director of Public Health shall report to the General Assembly no later than 18 months after the effective date of this Law on the status of the physician and podiatrist profiles. The Director shall also make recommendations in the report on the issue of developing profiles for other licensed health care professionals, including, but not limited to, dentists, nurses, physician assistants, optometrists, and physical therapists, and the type of information that would be appropriate to include in the respective profiles for each type of licensed health care professional.

Section 15-30. Rules. The Department shall adopt any rules necessary for the enforcement of this Law.

Section 15-90. The Medical Practice Act of 1987 is amended by changing Section 45 as follows:

(225 ILCS 60/45) (from Ch. 111, par. 4400-45)

(Section scheduled to be repealed on January 1, 2007)

Sec. 45. In all hearings conducted under this Act, information received, pursuant to law, relating to any information acquired by a physician in attending any patient in a professional character, necessary to enable them professionally to serve such patient, shall be deemed strictly confidential and shall only be made available either as part of the record of such hearing or otherwise: (a) when such record is required, in its entirety, for purposes of judicial review pursuant to this Act; or (b) upon the express, written consent of the patient, or in the case of their death or disability, of their personal representative.

The provisions of this Section shall not apply to information that the Department of Public Health or its designated agent is required to include in a physician's profile pursuant to the Health Care Consumer Information Law.

(Source: P.A. 85-4.)

Article 99.

Section 99-1. Effective date. This Act takes effect upon becoming law.