HB0317eng 95TH GENERAL ASSEMBLY

HB0317 Engrossed LRB095 03378 RLC 23382 b

AN ACT concerning abortions.

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

Section 2. The Medical Practice Act of 1987 is amended by changing Sections 22 and 23 as follows:

(225 ILCS 60/22) (from Ch. 111, par. 4400-22)

(Section scheduled to be repealed on December 31, 2008)

Sec. 22. Disciplinary action.

(A) The Department may revoke, suspend, place on probationary status, refuse to renew, or take any other disciplinary action as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds:

(1) Performance of an elective abortion in any place, locale, facility, or institution other than:

(a) a facility licensed pursuant to the Ambulatory Surgical Treatment Center Act;

(b) an institution licensed under the Hospital Licensing Act; or

(c) an ambulatory surgical treatment center or hospitalization or care facility maintained by the State or any agency thereof, where such department or agency has authority under law to establish and enforce standards for the ambulatory surgical treatment centers, hospitalization, or care facilities under its management and control; or

(d) ambulatory surgical treatment centers, hospitalization or care facilities maintained by the Federal Government; or

(e) ambulatory surgical treatment centers, hospitalization or care facilities maintained by any university or college established under the laws of this State and supported principally by public funds raised by taxation.

(2) Performance of an abortion procedure in a wilful and wanton manner on a woman who was not pregnant at the time the abortion procedure was performed.

(3) The conviction of a felony in this or any other jurisdiction, except as otherwise provided in subsection B of this Section, whether or not related to practice under this Act, or the entry of a guilty or nolo contendere plea to a felony charge.

(4) Gross negligence in practice under this Act.

(5) Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public.

(6) Obtaining any fee by fraud, deceit, or misrepresentation.

(7) Habitual or excessive use or abuse of drugs defined in law as controlled substances, of alcohol, or of any other substances which results in the inability to practice with reasonable judgment, skill or safety.

(8) Practicing under a false or, except as provided by law, an assumed name.

(9) Fraud or misrepresentation in applying for, or procuring, a license under this Act or in connection with applying for renewal of a license under this Act.

(10) Making a false or misleading statement regarding their skill or the efficacy or value of the medicine, treatment, or remedy prescribed by them at their direction in the treatment of any disease or other condition of the body or mind.

(11) Allowing another person or organization to use their license, procured under this Act, to practice.

(12) Disciplinary action of another state or jurisdiction against a license or other authorization to practice as a medical doctor, doctor of osteopathy, doctor of osteopathic medicine or doctor of chiropractic, a certified copy of the record of the action taken by the other state or jurisdiction being prima facie evidence thereof.

(13) Violation of any provision of this Act or of the Medical Practice Act prior to the repeal of that Act, or violation of the rules, or a final administrative action of the Secretary, after consideration of the recommendation of the Disciplinary Board.

(14) Dividing with anyone other than physicians with whom the licensee practices in a partnership, Professional Association, limited liability company, or Medical or Professional Corporation any fee, commission, rebate or other form of compensation for any professional services not actually and personally rendered. Nothing contained in this subsection prohibits persons holding valid and current licenses under this Act from practicing medicine in partnership under a partnership agreement, including a limited liability partnership, in a limited liability company under the Limited Liability Company Act, in a corporation authorized by the Medical Corporation Act, as an association authorized by the Professional Association Act, or in a corporation under the Professional Corporation Act or from pooling, sharing, dividing or apportioning the fees and monies received by them or by the partnership, corporation or association in accordance with the partnership agreement or the policies of the Board of Directors of the corporation or association. Nothing contained in this subsection prohibits 2 or more corporations authorized by the Medical Corporation Act, from forming a partnership or joint venture of such corporations, and providing medical, surgical and scientific research and knowledge by employees of these corporations if such employees are licensed under this Act, or from pooling, sharing, dividing, or apportioning the fees and monies received by the partnership or joint venture in accordance with the partnership or joint venture agreement. Nothing contained in this subsection shall abrogate the right of 2 or more persons, holding valid and current licenses under this Act, to each receive adequate compensation for concurrently rendering professional services to a patient and divide a fee; provided, the patient has full knowledge of the division, and, provided, that the division is made in proportion to the services performed and responsibility assumed by each.

(15) A finding by the Medical Disciplinary Board that the registrant after having his or her license placed on probationary status or subjected to conditions or restrictions violated the terms of the probation or failed to comply with such terms or conditions.

(16) Abandonment of a patient.

(17) Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance (designated product) or narcotic for other than medically accepted therapeutic purposes.

(18) Promotion of the sale of drugs, devices, appliances or goods provided for a patient in such manner as to exploit the patient for financial gain of the physician.

(19) Offering, undertaking or agreeing to cure or treat disease by a secret method, procedure, treatment or medicine, or the treating, operating or prescribing for any human condition by a method, means or procedure which the licensee refuses to divulge upon demand of the Department.

(20) Immoral conduct in the commission of any act including, but not limited to, commission of an act of sexual misconduct related to the licensee's practice.

(21) Wilfully making or filing false records or reports in his or her practice as a physician, including, but not limited to, false records to support claims against the medical assistance program of the Department of Healthcare and Family Services (formerly Department of Public Aid) under the Illinois Public Aid Code.

(22) Wilful omission to file or record, or wilfully impeding the filing or recording, or inducing another person to omit to file or record, medical reports as required by law, or wilfully failing to report an instance of suspected abuse or neglect as required by law.

(23) Being named as a perpetrator in an indicated report by the Department of Children and Family Services under the Abused and Neglected Child Reporting Act, and upon proof by clear and convincing evidence that the licensee has caused a child to be an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act.

(24) Solicitation of professional patronage by any corporation, agents or persons, or profiting from those representing themselves to be agents of the licensee.

(25) Gross and wilful and continued overcharging for professional services, including filing false statements for collection of fees for which services are not rendered, including, but not limited to, filing such false statements for collection of monies for services not rendered from the medical assistance program of the Department of Healthcare and Family Services (formerly Department of Public Aid) under the Illinois Public Aid Code.

(26) A pattern of practice or other behavior which demonstrates incapacity or incompetence to practice under this Act.

(27) Mental illness or disability which results in the inability to practice under this Act with reasonable judgment, skill or safety.

(28) Physical illness, including, but not limited to, deterioration through the aging process, or loss of motor skill which results in a physician's inability to practice under this Act with reasonable judgment, skill or safety.

(29) Cheating on or attempt to subvert the licensing examinations administered under this Act.

(30) Wilfully or negligently violating the confidentiality between physician and patient except as required by law.

(31) The use of any false, fraudulent, or deceptive statement in any document connected with practice under this Act.

(32) Aiding and abetting an individual not licensed under this Act in the practice of a profession licensed under this Act.

(33) Violating state or federal laws or regulations relating to controlled substances, legend drugs, or ephedra, as defined in the Ephedra Prohibition Act.

(34) Failure to report to the Department any adverse final action taken against them by another licensing jurisdiction (any other state or any territory of the United States or any foreign state or country), by any peer review body, by any health care institution, by any professional society or association related to practice under this Act, by any governmental agency, by any law enforcement agency, or by any court for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this Section.

(35) Failure to report to the Department surrender of a license or authorization to practice as a medical doctor, a doctor of osteopathy, a doctor of osteopathic medicine, or doctor of chiropractic in another state or jurisdiction, or surrender of membership on any medical staff or in any medical or professional association or society, while under disciplinary investigation by any of those authorities or bodies, for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this Section.

(36) Failure to report to the Department any adverse judgment, settlement, or award arising from a liability claim related to acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this Section.

(37) Failure to transfer copies of medical records as required by law.

(38) Failure to furnish the Department, its investigators or representatives, relevant information, legally requested by the Department after consultation with the Chief Medical Coordinator or the Deputy Medical Coordinator.

(39) Violating the Health Care Worker Self-Referral Act.

(40) Intentional failure to comply with Willful failure to provide notice when notice is required under the Parental Notice of Abortion Act of 1995.

(41) Failure to establish and maintain records of patient care and treatment as required by this law.

(42) Entering into an excessive number of written collaborative agreements with licensed advanced practice nurses resulting in an inability to adequately collaborate and provide medical direction.

(43) Repeated failure to adequately collaborate with or provide medical direction to a licensed advanced practice nurse.

Except for actions involving the ground numbered (26), all proceedings to suspend, revoke, place on probationary status, or take any other disciplinary action as the Department may deem proper, with regard to a license on any of the foregoing grounds, must be commenced within 5 years next after receipt by the Department of a complaint alleging the commission of or notice of the conviction order for any of the acts described herein. Except for the grounds numbered (8), (9), (26), and (29), no action shall be commenced more than 10 years after the date of the incident or act alleged to have violated this Section. For actions involving the ground numbered (26), a pattern of practice or other behavior includes all incidents alleged to be part of the pattern of practice or other behavior that occurred or a report pursuant to Section 23 of this Act received within the 10-year period preceding the filing of the complaint. In the event of the settlement of any claim or cause of action in favor of the claimant or the reduction to final judgment of any civil action in favor of the plaintiff, such claim, cause of action or civil action being grounded on the allegation that a person licensed under this Act was negligent in providing care, the Department shall have an additional period of 2 years from the date of notification to the Department under Section 23 of this Act of such settlement or final judgment in which to investigate and commence formal disciplinary proceedings under Section 36 of this Act, except as otherwise provided by law. The time during which the holder of the license was outside the State of Illinois shall not be included within any period of time limiting the commencement of disciplinary action by the Department.

The entry of an order or judgment by any circuit court establishing that any person holding a license under this Act is a person in need of mental treatment operates as a suspension of that license. That person may resume their practice only upon the entry of a Departmental order based upon a finding by the Medical Disciplinary Board that they have been determined to be recovered from mental illness by the court and upon the Disciplinary Board's recommendation that they be permitted to resume their practice.

The Department may refuse to issue or take disciplinary action concerning the license of any person who fails to file a return, or to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest, as required by any tax Act administered by the Illinois Department of Revenue, until such time as the requirements of any such tax Act are satisfied as determined by the Illinois Department of Revenue.

The Department, upon the recommendation of the Disciplinary Board, shall adopt rules which set forth standards to be used in determining:

(a) when a person will be deemed sufficiently rehabilitated to warrant the public trust;

(b) what constitutes dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud, or harm the public;

(c) what constitutes immoral conduct in the commission of any act, including, but not limited to, commission of an act of sexual misconduct related to the licensee's practice; and

(d) what constitutes gross negligence in the practice of medicine.

However, no such rule shall be admissible into evidence in any civil action except for review of a licensing or other disciplinary action under this Act.

In enforcing this Section, the Medical Disciplinary Board, upon a showing of a possible violation, may compel any individual licensed to practice under this Act, or who has applied for licensure or a permit pursuant to this Act, to submit to a mental or physical examination, or both, as required by and at the expense of the Department. The examining physician or physicians shall be those specifically designated by the Disciplinary Board. The Medical Disciplinary Board or the Department may order the examining physician to present testimony concerning this mental or physical examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communication between the licensee or applicant and the examining physician. The individual to be examined may have, at his or her own expense, another physician of his or her choice present during all aspects of the examination. Failure of any individual to submit to mental or physical examination, when directed, shall be grounds for suspension of his or her license until such time as the individual submits to the examination if the Disciplinary Board finds, after notice and hearing, that the refusal to submit to the examination was without reasonable cause. If the Disciplinary Board finds a physician unable to practice because of the reasons set forth in this Section, the Disciplinary Board shall require such physician to submit to care, counseling, or treatment by physicians approved or designated by the Disciplinary Board, as a condition for continued, reinstated, or renewed licensure to practice. Any physician, whose license was granted pursuant to Sections 9, 17, or 19 of this Act, or, continued, reinstated, renewed, disciplined or supervised, subject to such terms, conditions or restrictions who shall fail to comply with such terms, conditions or restrictions, or to complete a required program of care, counseling, or treatment, as determined by the Chief Medical Coordinator or Deputy Medical Coordinators, shall be referred to the Secretary for a determination as to whether the licensee shall have their license suspended immediately, pending a hearing by the Disciplinary Board. In instances in which the Secretary immediately suspends a license under this Section, a hearing upon such person's license must be convened by the Disciplinary Board within 15 days after such suspension and completed without appreciable delay. The Disciplinary Board shall have the authority to review the subject physician's record of treatment and counseling regarding the impairment, to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

An individual licensed under this Act, affected under this Section, shall be afforded an opportunity to demonstrate to the Disciplinary Board that they can resume practice in compliance with acceptable and prevailing standards under the provisions of their license.

The Department may promulgate rules for the imposition of fines in disciplinary cases, not to exceed $10,000 for each violation of this Act. Fines may be imposed in conjunction with other forms of disciplinary action, but shall not be the exclusive disposition of any disciplinary action arising out of conduct resulting in death or injury to a patient. Any funds collected from such fines shall be deposited in the Medical Disciplinary Fund.

(B) The Department shall revoke the license or visiting permit of any person issued under this Act to practice medicine or to treat human ailments without the use of drugs and without operative surgery, who has been convicted a second time of committing any felony under the Illinois Controlled Substances Act or the Methamphetamine Control and Community Protection Act, or who has been convicted a second time of committing a Class 1 felony under Sections 8A-3 and 8A-6 of the Illinois Public Aid Code. A person whose license or visiting permit is revoked under this subsection B of Section 22 of this Act shall be prohibited from practicing medicine or treating human ailments without the use of drugs and without operative surgery.

(C) The Medical Disciplinary Board shall recommend to the Department civil penalties and any other appropriate discipline in disciplinary cases when the Board finds that a physician intentionally failed to comply with willfully performed an abortion with actual knowledge that the person upon whom the abortion has been performed is a minor or an incompetent person without notice as required under the Parental Notice of Abortion Act of 1995. Upon the Board's recommendation, the Department shall impose, for the first violation, a civil penalty of $1,000 and for a second or subsequent violation, a civil penalty of $5,000.

(Source: P.A. 94-556, eff. 9-11-05; 94-677, eff. 8-25-05; revised 1-3-07.)

(225 ILCS 60/23) (from Ch. 111, par. 4400-23)

(Section scheduled to be repealed on December 31, 2008)

Sec. 23. Reports relating to professional conduct and capacity.

(A) Entities required to report.

(1) Health care institutions. The chief administrator or executive officer of any health care institution licensed by the Illinois Department of Public Health shall report to the Disciplinary Board when any person's clinical privileges are terminated or are restricted based on a final determination, in accordance with that institution's by-laws or rules and regulations, that a person has either committed an act or acts which may directly threaten patient care, and not of an administrative nature, or that a person may be mentally or physically disabled in such a manner as to endanger patients under that person's care. Such officer also shall report if a person accepts voluntary termination or restriction of clinical privileges in lieu of formal action based upon conduct related directly to patient care and not of an administrative nature, or in lieu of formal action seeking to determine whether a person may be mentally or physically disabled in such a manner as to endanger patients under that person's care. The Medical Disciplinary Board shall, by rule, provide for the reporting to it of all instances in which a person, licensed under this Act, who is impaired by reason of age, drug or alcohol abuse or physical or mental impairment, is under supervision and, where appropriate, is in a program of rehabilitation. Such reports shall be strictly confidential and may be reviewed and considered only by the members of the Disciplinary Board, or by authorized staff as provided by rules of the Disciplinary Board. Provisions shall be made for the periodic report of the status of any such person not less than twice annually in order that the Disciplinary Board shall have current information upon which to determine the status of any such person. Such initial and periodic reports of impaired physicians shall not be considered records within the meaning of The State Records Act and shall be disposed of, following a determination by the Disciplinary Board that such reports are no longer required, in a manner and at such time as the Disciplinary Board shall determine by rule. The filing of such reports shall be construed as the filing of a report for purposes of subsection (C) of this Section.

(2) Professional associations. The President or chief executive officer of any association or society, of persons licensed under this Act, operating within this State shall report to the Disciplinary Board when the association or society renders a final determination that a person has committed unprofessional conduct related directly to patient care or that a person may be mentally or physically disabled in such a manner as to endanger patients under that person's care.

(3) Professional liability insurers. Every insurance company which offers policies of professional liability insurance to persons licensed under this Act, or any other entity which seeks to indemnify the professional liability of a person licensed under this Act, shall report to the Disciplinary Board the settlement of any claim or cause of action, or final judgment rendered in any cause of action, which alleged negligence in the furnishing of medical care by such licensed person when such settlement or final judgment is in favor of the plaintiff.

(4) State's Attorneys. The State's Attorney of each county shall report to the Disciplinary Board all instances in which a person licensed under this Act is convicted or otherwise found guilty of the commission of any felony. The State's Attorney of each county may report to the Disciplinary Board through a verified complaint any instance in which the State's Attorney believes that a physician has intentionally failed to comply with willfully violated the notice requirements of the Parental Notice of Abortion Act of 1995.

(5) State agencies. All agencies, boards, commissions, departments, or other instrumentalities of the government of the State of Illinois shall report to the Disciplinary Board any instance arising in connection with the operations of such agency, including the administration of any law by such agency, in which a person licensed under this Act has either committed an act or acts which may be a violation of this Act or which may constitute unprofessional conduct related directly to patient care or which indicates that a person licensed under this Act may be mentally or physically disabled in such a manner as to endanger patients under that person's care.

(B) Mandatory reporting. All reports required by items (34), (35), and (36) of subsection (A) of Section 22 and by Section 23 shall be submitted to the Disciplinary Board in a timely fashion. The reports shall be filed in writing within 60 days after a determination that a report is required under this Act. All reports shall contain the following information:

(1) The name, address and telephone number of the person making the report.

(2) The name, address and telephone number of the person who is the subject of the report.

(3) The name and date of birth of any patient or patients whose treatment is a subject of the report, if available, or other means of identification if such information is not available, identification of the hospital or other healthcare facility where the care at issue in the report was rendered, provided, however, no medical records may be revealed.

(4) A brief description of the facts which gave rise to the issuance of the report, including the dates of any occurrences deemed to necessitate the filing of the report.

(5) If court action is involved, the identity of the court in which the action is filed, along with the docket number and date of filing of the action.

(6) Any further pertinent information which the reporting party deems to be an aid in the evaluation of the report.

The Disciplinary Board or Department may also exercise the power under Section 38 of this Act to subpoena copies of hospital or medical records in mandatory report cases alleging death or permanent bodily injury. Appropriate rules shall be adopted by the Department with the approval of the Disciplinary Board.

When the Department has received written reports concerning incidents required to be reported in items (34), (35), and (36) of subsection (A) of Section 22, the licensee's failure to report the incident to the Department under those items shall not be the sole grounds for disciplinary action.

Nothing contained in this Section shall act to in any way, waive or modify the confidentiality of medical reports and committee reports to the extent provided by law. Any information reported or disclosed shall be kept for the confidential use of the Disciplinary Board, the Medical Coordinators, the Disciplinary Board's attorneys, the medical investigative staff, and authorized clerical staff, as provided in this Act, and shall be afforded the same status as is provided information concerning medical studies in Part 21 of Article VIII of the Code of Civil Procedure, except that the Department may disclose information and documents to a federal, State, or local law enforcement agency pursuant to a subpoena in an ongoing criminal investigation. Furthermore, information and documents disclosed to a federal, State, or local law enforcement agency may be used by that agency only for the investigation and prosecution of a criminal offense.

(C) Immunity from prosecution. Any individual or organization acting in good faith, and not in a wilful and wanton manner, in complying with this Act by providing any report or other information to the Disciplinary Board or a peer review committee, or assisting in the investigation or preparation of such information, or by voluntarily reporting to the Disciplinary Board or a peer review committee information regarding alleged errors or negligence by a person licensed under this Act, or by participating in proceedings of the Disciplinary Board or a peer review committee, or by serving as a member of the Disciplinary Board or a peer review committee, shall not, as a result of such actions, be subject to criminal prosecution or civil damages.

(D) Indemnification. Members of the Disciplinary Board, the Medical Coordinators, the Disciplinary Board's attorneys, the medical investigative staff, physicians retained under contract to assist and advise the medical coordinators in the investigation, and authorized clerical staff shall be indemnified by the State for any actions occurring within the scope of services on the Disciplinary Board, done in good faith and not wilful and wanton in nature. The Attorney General shall defend all such actions unless he or she determines either that there would be a conflict of interest in such representation or that the actions complained of were not in good faith or were wilful and wanton.

Should the Attorney General decline representation, the member shall have the right to employ counsel of his or her choice, whose fees shall be provided by the State, after approval by the Attorney General, unless there is a determination by a court that the member's actions were not in good faith or were wilful and wanton.

The member must notify the Attorney General within 7 days of receipt of notice of the initiation of any action involving services of the Disciplinary Board. Failure to so notify the Attorney General shall constitute an absolute waiver of the right to a defense and indemnification.

The Attorney General shall determine within 7 days after receiving such notice, whether he or she will undertake to represent the member.

(E) Deliberations of Disciplinary Board. Upon the receipt of any report called for by this Act, other than those reports of impaired persons licensed under this Act required pursuant to the rules of the Disciplinary Board, the Disciplinary Board shall notify in writing, by certified mail, the person who is the subject of the report. Such notification shall be made within 30 days of receipt by the Disciplinary Board of the report.

The notification shall include a written notice setting forth the person's right to examine the report. Included in such notification shall be the address at which the file is maintained, the name of the custodian of the reports, and the telephone number at which the custodian may be reached. The person who is the subject of the report shall submit a written statement responding, clarifying, adding to, or proposing the amending of the report previously filed. The person who is the subject of the report shall also submit with the written statement any medical records related to the report. The statement and accompanying medical records shall become a permanent part of the file and must be received by the Disciplinary Board no more than 30 days after the date on which the person was notified by the Disciplinary Board of the existence of the original report.

The Disciplinary Board shall review all reports received by it, together with any supporting information and responding statements submitted by persons who are the subject of reports. The review by the Disciplinary Board shall be in a timely manner but in no event, shall the Disciplinary Board's initial review of the material contained in each disciplinary file be less than 61 days nor more than 180 days after the receipt of the initial report by the Disciplinary Board.

When the Disciplinary Board makes its initial review of the materials contained within its disciplinary files, the Disciplinary Board shall, in writing, make a determination as to whether there are sufficient facts to warrant further investigation or action. Failure to make such determination within the time provided shall be deemed to be a determination that there are not sufficient facts to warrant further investigation or action.

Should the Disciplinary Board find that there are not sufficient facts to warrant further investigation, or action, the report shall be accepted for filing and the matter shall be deemed closed and so reported to the Secretary. The Secretary shall then have 30 days to accept the Medical Disciplinary Board's decision or request further investigation. The Secretary shall inform the Board in writing of the decision to request further investigation, including the specific reasons for the decision. The individual or entity filing the original report or complaint and the person who is the subject of the report or complaint shall be notified in writing by the Secretary of any final action on their report or complaint.

(F) Summary reports. The Disciplinary Board shall prepare, on a timely basis, but in no event less than one every other month, a summary report of final actions taken upon disciplinary files maintained by the Disciplinary Board. The summary reports shall be sent by the Disciplinary Board to every health care facility licensed by the Illinois Department of Public Health, every professional association and society of persons licensed under this Act functioning on a statewide basis in this State, the American Medical Association, the American Osteopathic Association, the American Chiropractic Association, all insurers providing professional liability insurance to persons licensed under this Act in the State of Illinois, the Federation of State Medical Licensing Boards, and the Illinois Pharmacists Association.

(G) Any violation of this Section shall be a Class A misdemeanor.

(H) If any such person violates the provisions of this Section an action may be brought in the name of the People of the State of Illinois, through the Attorney General of the State of Illinois, for an order enjoining such violation or for an order enforcing compliance with this Section. Upon filing of a verified petition in such court, the court may issue a temporary restraining order without notice or bond and may preliminarily or permanently enjoin such violation, and if it is established that such person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this paragraph shall be in addition to, and not in lieu of, all other remedies and penalties provided for by this Section.

(Source: P.A. 94-677, eff. 8-25-05.)

Section 5. The Parental Notice of Abortion Act of 1995 is amended by changing Sections 5, 10, 15, 20, 40, 45, 90, and 95 and by adding Sections 24, 26, and 46 as follows:

(750 ILCS 70/5)

Sec. 5. Legislative findings and purpose. The General Assembly finds that involvement of a responsible and caring adult in an unemancipated minor's decision about her pregnancy can facilitate quality decision making. The General Assembly finds that the involvement of an adult family member can help to guide an unemancipated minor in making such healthcare decisions. When circumstances preclude the involvement of an adult family member, it is the intent of this Act to create an alternative procedure that will ensure counseling and guidance as to all of the minor's options relating to the minor's decision about her pregnancy. The General Assembly's purpose in enacting this Act is to further its goal of ensuring quality healthcare for all of its citizens. The General Assembly finds that notification of a family member as defined in this Act is in the best interest of an unemancipated minor, and the General Assembly's purpose in enacting this parental notice law is to further and protect the best interests of an unemancipated minor.

The medical, emotional, and psychological consequences of abortion are sometimes serious and long-lasting, and immature minors often lack the ability to make fully informed choices that consider both the immediate and long-range consequences.

Parental consultation is usually in the best interest of the minor and is desirable since the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/10)

Sec. 10. Definitions. As used in this Act:

"Abortion" means the use of any instrument, medicine, or drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, or to preserve the life or health of a child after live birth, or to remove a dead fetus.

"Actual notice" means the giving of notice directly, in person, or by telephone, and not by facsimile, voicemail, or answering machine.

"Adult family member" means a person over 18 21 years of age who is:

(1) the parent of the minor;

(2) a step-parent married to and residing with the custodial parent of the minor;

(3) a legal guardian of the minor; or

(4) a grandparent, aunt, or uncle of the minor. the parent, grandparent, step-parent living in the household, or legal guardian.

"Constructive notice" means notice sent by certified mail to the last known address of the person who can receive notice under Section 15 of this Act, entitled to notice with delivery deemed to have occurred 48 hours after the certified notice is mailed.

"Counselor" means a person who is an advanced practice nurse licensed under the Nursing and Advanced Practice Nursing Act, a physician licensed under the Medical Practice Act of 1987, a clinical psychologist licensed under the Clinical Psychologist Licensing Act, or a clinical social worker licensed under the Clinical Social Work and Social Work Practice Act.

"Incompetent" means any person who has been adjudged as mentally ill or developmentally disabled and who, because of her mental illness or developmental disability, is not fully able to manage her person and for whom a guardian of the person has been appointed under Section 11a-3(a)(1) of the Probate Act of 1975.

"Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk to her health of substantial and irreversible impairment of major bodily function.

"Minor" means any person under 18 years of age who is not or has not been married or who has not been emancipated under the Emancipation of Mature Minors Act.

"Neglect" means the failure of an adult family member to supply a child with necessary food, clothing, shelter, or medical care when reasonably able to do so or the failure to protect a child from conditions or actions that imminently and seriously endanger the child's physical or mental health when reasonably able to do so.

"Physical abuse" means any physical injury intentionally inflicted by an adult family member on a child.

"Physician" means any person licensed to practice medicine in all its branches under the Illinois Medical Practice Act of 1987.

"Sexual abuse" means any sexual conduct or sexual penetration as defined in Section 12-12 of the Criminal Code of 1961 that is prohibited by the criminal laws of the State of Illinois and committed against a minor by an adult family member as defined in this Act.

(Source: P.A. 89-18, eff. 6-1-95; revised 10-9-03.)

(750 ILCS 70/15)

Sec. 15. Prohibitions Notice to adult family member. No person shall intentionally perform an abortion upon a minor unless the person or his or her agent has given at least 48 hours' actual notice to an adult family member of the pregnant minor of his or her intention to perform the abortion, unless that person or his or her agent has received a written statement by a referring physician certifying that the referring physician or his or her agent has given at least 48 hours' notice to an adult family member of the pregnant minor. If actual notice is not possible based on reasonable efforts by the person seeking to perform the abortion, or his or her agent, within one day, that person or his or her agent must give 48 hours' constructive notice. No person shall knowingly perform an abortion upon a minor or upon an incompetent person unless the physician or his or her agent has given at least 48 hours actual notice to an adult family member of the pregnant minor or incompetent person of his or her intention to perform the abortion, unless that person or his or her agent has received a written statement by a referring physician certifying that the referring physician or his or her agent has given at least 48 hours notice to an adult family member of the pregnant minor or incompetent person. If actual notice is not possible after a reasonable effort, the physician or his or her agent must give 48 hours constructive notice.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/20)

Sec. 20. Exceptions. Notice shall not be required under this Act if:

(1) at the time the abortion is performed, the minor or incompetent person is accompanied by a person who can receive entitled to notice under Section 15 of this Act; or

(2) notice under this Act is waived in writing by a person who can receive is entitled to notice under Section 15 of this Act; or

(3) the attending physician certifies in the patient's medical record that a medical emergency exists and there is insufficient time to provide the required notice; or

(4) the minor declares in writing to the physician or to an agent of the physician that she is a victim of sexual abuse, neglect, or physical abuse by an adult family member, as defined in this Act, in which case: (i) the . The attending physician must certify in the patient's medical record that he or she has received the written declaration of abuse, (ii) any or neglect. Any notification of public authorities of abuse that may be required under other laws of this State need not be made by the person performing the abortion until after the minor receives an abortion that otherwise complies with the requirements of this Act, and (iii) the Department of Children and Family Services shall, pursuant to Section 7.19 of the Abused and Neglected Child Reporting Act, prohibit the release of any information or data that would identify or locate the person who made the report of abuse, or that in any way would reveal the minor's abortion choice; or

(5) notice under this Act is waived by the minor participating in an information and counseling session as set forth in under Section 24; or 25.

(6) notice is waived under Section 26.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/24 new)

Sec. 24. Information and counseling for minors.

(a) The provision of information and counseling by a counselor for any pregnant minor for decision making regarding pregnancy shall be in accordance with this Section.

(b) Any counselor providing pregnancy information and counseling under this Section shall, in a manner designed to be clear and understandable to the minor:

(1) explain that the information being given to the minor is being given objectively and is not intended to coerce, persuade, or induce the minor to choose either to have an abortion or to carry the pregnancy to term;

(2) discuss the possibility of involving the minor's parents, guardian, or other adult family members in the minor's decision making concerning the pregnancy and explore whether the minor believes that involvement would be in the minor's best interest;

(3) clearly and fully explore with the minor the alternative choices available for managing the pregnancy;

(4) explain that the minor may withdraw a decision to have an abortion at any time before the abortion is performed and may reconsider a decision not to have an abortion at any time within the time period during which an abortion may legally be performed; and

(5) provide adequate opportunity for the minor to ask any questions concerning the pregnancy, abortion, child care, and adoption, and provide the information the minor seeks or, if the counselor cannot provide the information, indicate where the minor can receive the information.

(c) After the counselor provides the information and counseling to a minor as required by this Section, that person shall have the minor sign and date a form stating that:

(1) the minor has received information on prenatal care and alternatives to abortion and that there are agencies that will provide assistance;

(2) the counselor has discussed with the minor the possibility of involving the minor's parents, guardian, or other adult family members in the minor's decision making about the pregnancy;

(3) the minor has received an explanation that the minor may withdraw an abortion decision or reconsider a decision to carry a pregnancy to term;

(4) the alternatives available for managing the pregnancy have been clearly and fully explored with the minor;

(5) the minor has received an explanation about agencies available to provide birth control information; and

(6) the minor has been given an adequate opportunity to ask questions.

The counselor providing the information and counseling shall also sign and date the form and include the counselor's address and telephone number. The counselor shall retain a copy in his or her files and shall give the form to the minor or, if the minor requests and if the counselor providing information and counseling is not the attending physician, transmit the form to the minor's attending physician.

The counselor providing information and counseling pursuant to this Section shall have no current actual financial relationship with the healthcare provider who will perform the minor's abortion, and such information and counseling shall not be provided in the facility in which the minor's abortion shall be performed.

(750 ILCS 70/26 new)

Sec. 26. Procedure for judicial waiver of notice.

(a) The requirements and procedures under this Section are available to minors whether or not they are residents of this State.

(b) The minor may petition any circuit court for a waiver of the notice requirement and may participate in proceedings on her own behalf. The circuit court shall immediately advise the minor that she has a right to court-appointed counsel and shall provide her with counsel upon her request. The court shall appoint a guardian ad litem for the minor. Any guardian ad litem appointed under this Act shall act in the best interest of the minor and shall take all steps necessary to maintain the absolute confidentiality of the proceedings.

(c) Court proceedings under this Section shall be confidential and shall ensure the anonymity of the minor. The minor shall have the right to file her petition in the circuit court using a pseudonym or using solely her initials. All documents filed with or prepared by the court in connection with the minor's petition shall be maintained under seal. All documents related to the minor's petition shall be confidential and shall not be made available to the public. All circuit courts shall establish procedures that will ensure that all communications between a minor seeking to file, or having filed, a petition under this Section and the circuit court clerk's office are conducted confidentially. Such procedures shall include designation of a member of the clerk's office staff who will conduct all communication with the minor, a designated telephone line for contact with such minors, and a private space within the clerk's office for communications between the minor and designated personnel. All court personnel, including clerk's office staff, shall take all steps necessary to maintain absolute confidentiality in connection with the minor's petition. Court personnel are prohibited from disclosing any information about the minor or her petition to any member of the public or to other court personnel unless disclosure to such personnel is essential to the resolution of the minor's petition. All proceedings relating to the minor's petition shall be closed to the public, with entry permitted only to the minor, or any person she asks to be present, the minor's counsel, the guardian ad litem, the circuit court judge and other essential courtroom personnel. These proceedings shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a prompt decision. Any hearing on the minor's petition must be held and a ruling issued within 48 hours of the time that the petition is filed, except that the 48 hour limitation may be extended at the request of the minor. The court shall issue its ruling along with findings of fact and conclusions of law at the conclusion of any hearing on the minor's petition. Such findings and conclusions shall be memorialized in a certified, confidential transcript of the proceedings. A court that conducts proceedings under this Section shall order that a confidential record of the evidence and the court's findings and conclusions be maintained. If the court fails to rule within 48 hours of the time that the petition was filed, and the minor has not requested an extension, the petition shall be deemed to have been granted, and the notice requirement shall be waived. In such case, the clerk's office shall provide the minor with an official certification of waiver of notice. If the court denies the minor's petition, it shall, at the time of such denial, inform the minor of her right to pursue an appeal from the denial of her petition and the steps she must take to pursue such appeal. In addition, such steps shall be set forth in detail on the back of the court's order denying the minor's petition.

(d) Notice shall be waived if the court finds by a preponderance of the evidence either:

(1) that the minor is sufficiently mature and well enough informed to decide intelligently whether to have an abortion; or

(2) that notification under Section 15 of this Act would not be in the best interests of the minor.

(e) In the event that the court finds that the minor has met either of the standards for waiver of notice set forth in subsection (d), the court shall enter an order permitting a qualified medical professional to perform an abortion on the minor without giving notice under this Act and setting forth that the minor may legally consent to the abortion procedure.

(f) An expedited confidential appeal shall be available, as set forth in Illinois Supreme Court Rule 303A, to any minor to whom the circuit court denies a waiver of notice. An order authorizing an abortion without notice shall not be subject to appeal.

(g) No fees shall be required of any minor who avails herself of the procedures provided by this Section.

(750 ILCS 70/40)

Sec. 40. Penalties.

(a) A Any physician who intentionally willfully fails to comply with provide notice as required under this Act may before performing an abortion on a minor or an incompetent person shall be referred to the Illinois State Medical Disciplinary Board for appropriate action in accordance with Section 22 of the Medical Practice Act of 1987.

(b) A Any person, not authorized under this Act, who signs any waiver of notice for a minor or incompetent person seeking an abortion, is guilty of a Class C misdemeanor.

(c) A person who discloses confidential information obtained in the context of counseling under Section 24 of this Act is guilty of a Class C misdemeanor.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/45)

Sec. 45. Immunity. A Any physician who, in good faith, provides notice in accordance with Section 15 or relies on an exception under Section 20 shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for failure to give required notice required under this Act. A counselor who in good faith provides information and counseling to a minor pursuant to Section 24 shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for any of his or her actions in connection with providing such counseling and information. The immunity in this Section does not apply to willful or wanton conduct.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/46 new)

Sec. 46. Right of conscience. No provision of this Act impairs a physician, counselor, or other healthcare professional's rights under the Health Care Right of Conscience Act and the Abortion Performance Refusal Act.

(750 ILCS 70/90)

Sec. 90. The Illinois Abortion Parental Consent Act of 1977, which was repealed by Public Act 89-18, is again repealed.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/95)

Sec. 95. The Parental Notice of Abortion Act of 1983, which was repealed by Public Act 89-18, is again repealed.

(Source: P.A. 89-18, eff. 6-1-95.)

(750 ILCS 70/25 rep.)

(750 ILCS 70/50 rep.)

Section 10. The Parental Notice of Abortion Act of 1995 is amended by repealing Sections 25 and 50.