Illinois General Assembly - Full Text of HB5726
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Full Text of HB5726  95th General Assembly



State of Illinois
2007 and 2008


Introduced , by Rep. Jay C. Hoffman


5 ILCS 140/7   from Ch. 116, par. 207
20 ILCS 2205/2205-15 new

    Amends the Freedom of Information Act and the Department of Public Aid Law of the Civil Administrative Code of Illinois. Provides that every manufacturer or labeler of prescription drugs dispensed in this State that employs, directs, or utilizes marketing representatives must report the manufacturer or labeler's advertising costs for prescription drugs, based on aggregate national data, to the Department of Healthcare and Family Services. Provides that the purpose of the reporting is to assist the State in its role as a purchaser of prescription drugs and an administrator of prescription drug programs. Makes certain items exempt from the reporting requirements, including free samples of prescription drugs intended to be distributed to patients. Provides that information reported to the Department is confidential and not a public record subject to disclosure under the Freedom of Information Act. Requires the Department to establish programs aimed at educating health care practitioners about the relative costs and benefits of various prescription drugs. Authorizes the Department to assign responsibilities to the Special Advocate for Prescription Drugs within the Department.

LRB095 19912 DRJ 46329 b






HB5726 LRB095 19912 DRJ 46329 b

1     AN ACT concerning State government.
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4     Section 5. The Freedom of Information Act is amended by
5 changing Section 7 as follows:
6     (5 ILCS 140/7)  (from Ch. 116, par. 207)
7     Sec. 7. Exemptions.
8     (1) The following shall be exempt from inspection and
9 copying:
10         (a) Information specifically prohibited from
11     disclosure by federal or State law or rules and regulations
12     adopted under federal or State law.
13         (b) Information that, if disclosed, would constitute a
14     clearly unwarranted invasion of personal privacy, unless
15     the disclosure is consented to in writing by the individual
16     subjects of the information. The disclosure of information
17     that bears on the public duties of public employees and
18     officials shall not be considered an invasion of personal
19     privacy. Information exempted under this subsection (b)
20     shall include but is not limited to:
21             (i) files and personal information maintained with
22         respect to clients, patients, residents, students or
23         other individuals receiving social, medical,



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1         educational, vocational, financial, supervisory or
2         custodial care or services directly or indirectly from
3         federal agencies or public bodies;
4             (ii) personnel files and personal information
5         maintained with respect to employees, appointees or
6         elected officials of any public body or applicants for
7         those positions;
8             (iii) files and personal information maintained
9         with respect to any applicant, registrant or licensee
10         by any public body cooperating with or engaged in
11         professional or occupational registration, licensure
12         or discipline;
13             (iv) information required of any taxpayer in
14         connection with the assessment or collection of any tax
15         unless disclosure is otherwise required by State
16         statute;
17             (v) information revealing the identity of persons
18         who file complaints with or provide information to
19         administrative, investigative, law enforcement or
20         penal agencies; provided, however, that identification
21         of witnesses to traffic accidents, traffic accident
22         reports, and rescue reports may be provided by agencies
23         of local government, except in a case for which a
24         criminal investigation is ongoing, without
25         constituting a clearly unwarranted per se invasion of
26         personal privacy under this subsection; and



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1             (vi) the names, addresses, or other personal
2         information of participants and registrants in park
3         district, forest preserve district, and conservation
4         district programs.
5         (c) Records compiled by any public body for
6     administrative enforcement proceedings and any law
7     enforcement or correctional agency for law enforcement
8     purposes or for internal matters of a public body, but only
9     to the extent that disclosure would:
10             (i) interfere with pending or actually and
11         reasonably contemplated law enforcement proceedings
12         conducted by any law enforcement or correctional
13         agency;
14             (ii) interfere with pending administrative
15         enforcement proceedings conducted by any public body;
16             (iii) deprive a person of a fair trial or an
17         impartial hearing;
18             (iv) unavoidably disclose the identity of a
19         confidential source or confidential information
20         furnished only by the confidential source;
21             (v) disclose unique or specialized investigative
22         techniques other than those generally used and known or
23         disclose internal documents of correctional agencies
24         related to detection, observation or investigation of
25         incidents of crime or misconduct;
26             (vi) constitute an invasion of personal privacy



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1         under subsection (b) of this Section;
2             (vii) endanger the life or physical safety of law
3         enforcement personnel or any other person; or
4             (viii) obstruct an ongoing criminal investigation.
5         (d) Criminal history record information maintained by
6     State or local criminal justice agencies, except the
7     following which shall be open for public inspection and
8     copying:
9             (i) chronologically maintained arrest information,
10         such as traditional arrest logs or blotters;
11             (ii) the name of a person in the custody of a law
12         enforcement agency and the charges for which that
13         person is being held;
14             (iii) court records that are public;
15             (iv) records that are otherwise available under
16         State or local law; or
17             (v) records in which the requesting party is the
18         individual identified, except as provided under part
19         (vii) of paragraph (c) of subsection (1) of this
20         Section.
21         "Criminal history record information" means data
22     identifiable to an individual and consisting of
23     descriptions or notations of arrests, detentions,
24     indictments, informations, pre-trial proceedings, trials,
25     or other formal events in the criminal justice system or
26     descriptions or notations of criminal charges (including



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1     criminal violations of local municipal ordinances) and the
2     nature of any disposition arising therefrom, including
3     sentencing, court or correctional supervision,
4     rehabilitation and release. The term does not apply to
5     statistical records and reports in which individuals are
6     not identified and from which their identities are not
7     ascertainable, or to information that is for criminal
8     investigative or intelligence purposes.
9         (e) Records that relate to or affect the security of
10     correctional institutions and detention facilities.
11         (f) Preliminary drafts, notes, recommendations,
12     memoranda and other records in which opinions are
13     expressed, or policies or actions are formulated, except
14     that a specific record or relevant portion of a record
15     shall not be exempt when the record is publicly cited and
16     identified by the head of the public body. The exemption
17     provided in this paragraph (f) extends to all those records
18     of officers and agencies of the General Assembly that
19     pertain to the preparation of legislative documents.
20         (g) Trade secrets and commercial or financial
21     information obtained from a person or business where the
22     trade secrets or information are proprietary, privileged
23     or confidential, or where disclosure of the trade secrets
24     or information may cause competitive harm, including:
25             (i) All information determined to be confidential
26         under Section 4002 of the Technology Advancement and



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1         Development Act.
2             (ii) All trade secrets and commercial or financial
3         information obtained by a public body, including a
4         public pension fund, from a private equity fund or a
5         privately held company within the investment portfolio
6         of a private equity fund as a result of either
7         investing or evaluating a potential investment of
8         public funds in a private equity fund. The exemption
9         contained in this item does not apply to the aggregate
10         financial performance information of a private equity
11         fund, nor to the identity of the fund's managers or
12         general partners. The exemption contained in this item
13         does not apply to the identity of a privately held
14         company within the investment portfolio of a private
15         equity fund, unless the disclosure of the identity of a
16         privately held company may cause competitive harm.
17     Nothing contained in this paragraph (g) shall be construed
18 to prevent a person or business from consenting to disclosure.
19         (h) Proposals and bids for any contract, grant, or
20     agreement, including information which if it were
21     disclosed would frustrate procurement or give an advantage
22     to any person proposing to enter into a contractor
23     agreement with the body, until an award or final selection
24     is made. Information prepared by or for the body in
25     preparation of a bid solicitation shall be exempt until an
26     award or final selection is made.



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1         (i) Valuable formulae, computer geographic systems,
2     designs, drawings and research data obtained or produced by
3     any public body when disclosure could reasonably be
4     expected to produce private gain or public loss. The
5     exemption for "computer geographic systems" provided in
6     this paragraph (i) does not extend to requests made by news
7     media as defined in Section 2 of this Act when the
8     requested information is not otherwise exempt and the only
9     purpose of the request is to access and disseminate
10     information regarding the health, safety, welfare, or
11     legal rights of the general public.
12         (j) Test questions, scoring keys and other examination
13     data used to administer an academic examination or
14     determined the qualifications of an applicant for a license
15     or employment.
16         (k) Architects' plans, engineers' technical
17     submissions, and other construction related technical
18     documents for projects not constructed or developed in
19     whole or in part with public funds and the same for
20     projects constructed or developed with public funds, but
21     only to the extent that disclosure would compromise
22     security, including but not limited to water treatment
23     facilities, airport facilities, sport stadiums, convention
24     centers, and all government owned, operated, or occupied
25     buildings.
26         (l) Library circulation and order records identifying



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1     library users with specific materials.
2         (m) Minutes of meetings of public bodies closed to the
3     public as provided in the Open Meetings Act until the
4     public body makes the minutes available to the public under
5     Section 2.06 of the Open Meetings Act.
6         (n) Communications between a public body and an
7     attorney or auditor representing the public body that would
8     not be subject to discovery in litigation, and materials
9     prepared or compiled by or for a public body in
10     anticipation of a criminal, civil or administrative
11     proceeding upon the request of an attorney advising the
12     public body, and materials prepared or compiled with
13     respect to internal audits of public bodies.
14         (o) Information received by a primary or secondary
15     school, college or university under its procedures for the
16     evaluation of faculty members by their academic peers.
17         (p) Administrative or technical information associated
18     with automated data processing operations, including but
19     not limited to software, operating protocols, computer
20     program abstracts, file layouts, source listings, object
21     modules, load modules, user guides, documentation
22     pertaining to all logical and physical design of
23     computerized systems, employee manuals, and any other
24     information that, if disclosed, would jeopardize the
25     security of the system or its data or the security of
26     materials exempt under this Section.



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1         (q) Documents or materials relating to collective
2     negotiating matters between public bodies and their
3     employees or representatives, except that any final
4     contract or agreement shall be subject to inspection and
5     copying.
6         (r) Drafts, notes, recommendations and memoranda
7     pertaining to the financing and marketing transactions of
8     the public body. The records of ownership, registration,
9     transfer, and exchange of municipal debt obligations, and
10     of persons to whom payment with respect to these
11     obligations is made.
12         (s) The records, documents and information relating to
13     real estate purchase negotiations until those negotiations
14     have been completed or otherwise terminated. With regard to
15     a parcel involved in a pending or actually and reasonably
16     contemplated eminent domain proceeding under the Eminent
17     Domain Act, records, documents and information relating to
18     that parcel shall be exempt except as may be allowed under
19     discovery rules adopted by the Illinois Supreme Court. The
20     records, documents and information relating to a real
21     estate sale shall be exempt until a sale is consummated.
22         (t) Any and all proprietary information and records
23     related to the operation of an intergovernmental risk
24     management association or self-insurance pool or jointly
25     self-administered health and accident cooperative or pool.
26         (u) Information concerning a university's adjudication



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1     of student or employee grievance or disciplinary cases, to
2     the extent that disclosure would reveal the identity of the
3     student or employee and information concerning any public
4     body's adjudication of student or employee grievances or
5     disciplinary cases, except for the final outcome of the
6     cases.
7         (v) Course materials or research materials used by
8     faculty members.
9         (w) Information related solely to the internal
10     personnel rules and practices of a public body.
11         (x) Information contained in or related to
12     examination, operating, or condition reports prepared by,
13     on behalf of, or for the use of a public body responsible
14     for the regulation or supervision of financial
15     institutions or insurance companies, unless disclosure is
16     otherwise required by State law.
17         (y) Information the disclosure of which is restricted
18     under Section 5-108 of the Public Utilities Act.
19         (z) Manuals or instruction to staff that relate to
20     establishment or collection of liability for any State tax
21     or that relate to investigations by a public body to
22     determine violation of any criminal law.
23         (aa) Applications, related documents, and medical
24     records received by the Experimental Organ Transplantation
25     Procedures Board and any and all documents or other records
26     prepared by the Experimental Organ Transplantation



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1     Procedures Board or its staff relating to applications it
2     has received.
3         (bb) Insurance or self insurance (including any
4     intergovernmental risk management association or self
5     insurance pool) claims, loss or risk management
6     information, records, data, advice or communications.
7         (cc) Information and records held by the Department of
8     Public Health and its authorized representatives relating
9     to known or suspected cases of sexually transmissible
10     disease or any information the disclosure of which is
11     restricted under the Illinois Sexually Transmissible
12     Disease Control Act.
13         (dd) Information the disclosure of which is exempted
14     under Section 30 of the Radon Industry Licensing Act.
15         (ee) Firm performance evaluations under Section 55 of
16     the Architectural, Engineering, and Land Surveying
17     Qualifications Based Selection Act.
18         (ff) Security portions of system safety program plans,
19     investigation reports, surveys, schedules, lists, data, or
20     information compiled, collected, or prepared by or for the
21     Regional Transportation Authority under Section 2.11 of
22     the Regional Transportation Authority Act or the St. Clair
23     County Transit District under the Bi-State Transit Safety
24     Act.
25         (gg) Information the disclosure of which is restricted
26     and exempted under Section 50 of the Illinois Prepaid



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1     Tuition Act.
2         (hh) Information the disclosure of which is exempted
3     under the State Officials and Employees Ethics Act.
4         (ii) Beginning July 1, 1999, information that would
5     disclose or might lead to the disclosure of secret or
6     confidential information, codes, algorithms, programs, or
7     private keys intended to be used to create electronic or
8     digital signatures under the Electronic Commerce Security
9     Act.
10         (jj) Information contained in a local emergency energy
11     plan submitted to a municipality in accordance with a local
12     emergency energy plan ordinance that is adopted under
13     Section 11-21.5-5 of the Illinois Municipal Code.
14         (kk) Information and data concerning the distribution
15     of surcharge moneys collected and remitted by wireless
16     carriers under the Wireless Emergency Telephone Safety
17     Act.
18         (ll) Vulnerability assessments, security measures, and
19     response policies or plans that are designed to identify,
20     prevent, or respond to potential attacks upon a community's
21     population or systems, facilities, or installations, the
22     destruction or contamination of which would constitute a
23     clear and present danger to the health or safety of the
24     community, but only to the extent that disclosure could
25     reasonably be expected to jeopardize the effectiveness of
26     the measures or the safety of the personnel who implement



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1     them or the public. Information exempt under this item may
2     include such things as details pertaining to the
3     mobilization or deployment of personnel or equipment, to
4     the operation of communication systems or protocols, or to
5     tactical operations.
6         (mm) Maps and other records regarding the location or
7     security of generation, transmission, distribution,
8     storage, gathering, treatment, or switching facilities
9     owned by a utility or by the Illinois Power Agency.
10         (nn) Law enforcement officer identification
11     information or driver identification information compiled
12     by a law enforcement agency or the Department of
13     Transportation under Section 11-212 of the Illinois
14     Vehicle Code.
15         (oo) Records and information provided to a residential
16     health care facility resident sexual assault and death
17     review team or the Executive Council under the Abuse
18     Prevention Review Team Act.
19         (pp) Information provided to the predatory lending
20     database created pursuant to Article 3 of the Residential
21     Real Property Disclosure Act, except to the extent
22     authorized under that Article.
23         (qq) Defense budgets and petitions for certification
24     of compensation and expenses for court appointed trial
25     counsel as provided under Sections 10 and 15 of the Capital
26     Crimes Litigation Act. This subsection (qq) shall apply



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1     until the conclusion of the trial of the case, even if the
2     prosecution chooses not to pursue the death penalty prior
3     to trial or sentencing.
4         (rr) Information contained in or related to proposals,
5     bids, or negotiations related to electric power
6     procurement under Section 1-75 of the Illinois Power Agency
7     Act and Section 16-111.5 of the Public Utilities Act that
8     is determined to be confidential and proprietary by the
9     Illinois Power Agency or by the Illinois Commerce
10     Commission.
11         (ss) Information reported to the Department of
12     Healthcare and Family Services by a prescription drug
13     manufacturer or labeler under Section 2205-15 of the
14     Department of Public Aid Law of the Civil Administrative
15     Code of Illinois.
16     (2) This Section does not authorize withholding of
17 information or limit the availability of records to the public,
18 except as stated in this Section or otherwise provided in this
19 Act.
20 (Source: P.A. 94-280, eff. 1-1-06; 94-508, eff. 1-1-06; 94-664,
21 eff. 1-1-06; 94-931, eff. 6-26-06; 94-953, eff. 6-27-06;
22 94-1055, eff. 1-1-07; 95-331, eff. 8-21-07; 95-481, eff.
23 8-28-07.)
24     Section 10. The Department of Public Aid Law of the Civil
25 Administrative Code of Illinois is amended by adding Section



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1 2205-15 as follows:
2     (20 ILCS 2205/2205-15 new)
3     Sec. 2205-15. Prescription drugs; reporting of advertising
4 costs; prescriber education.
5     (a) Every manufacturer or labeler of prescription drugs
6 dispensed in this State that employs, directs, or utilizes
7 marketing representatives must report the manufacturer or
8 labeler's advertising costs for prescription drugs, based on
9 aggregate national data, to the Department of Healthcare and
10 Family Services. The purpose of this reporting is to assist the
11 State in its role as a purchaser of prescription drugs and an
12 administrator of prescription drug programs, enabling the
13 State to determine the scope of prescription drug advertising
14 costs and their effect on the cost, utilization, and delivery
15 of health care services and furthering the role of this State
16 as guardian of the public interest. The reporting of this
17 information will allow the State to obtain an accurate view of
18 the level and scope of drug marketing and advertising in
19 Illinois. The assignment of responsibilities to the Department
20 under this Section is appropriate in light of the Department's
21 responsibilities in connection with State healthcare
22 purchasing.
23     (b) The Department shall adopt rules establishing the
24 reporting requirements for prescription drug manufacturers and
25 labelers under this Section. The information to be reported



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1 must include all national aggregate expenses associated with
2 the advertising and direct promotion of prescription drugs
3 through radio, television, magazines, newspapers, direct mail,
4 and telephone communications as they pertain to residents of
5 this State. In developing the rules, the Department shall
6 explore requirements and criteria, including the level of
7 detail, for manufacturers and labelers to report their
8 expenditures for advertising, marketing, and promotion, based
9 on aggregate national data. The Department also shall work to
10 achieve disclosure of the amounts spent by prescription drug
11 manufacturers and labelers with regard to expenditures for
12 advertising, marketing, and promotion, as well as for provider
13 incentives and research and development efforts. The
14 information required to be reported under this Section shall
15 include, but need not be limited to, the following:
16         (1) The names and qualifications of drug sales
17     representatives who call on prescribers of prescription
18     drugs in this State or otherwise operate within this State
19     ("Illinois drug sales representatives").
20         (2) The aggregate expenditures by each manufacturer or
21     labeler that are associated with the manufacturer or
22     labeler's Illinois drug sales representatives, including
23     salaries, benefits, support staff, marketing program
24     expenses, outside contractors, and expense accounts. A
25     manufacturer or labeler must report only its aggregate data
26     and need not report individual salaries and information.



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1         (3) All gifts, grants, or payments of any kind made
2     directly or indirectly to any person authorized to
3     prescribe drugs in Illinois. Every manufacturer or labeler
4     must report the total annual amount for each such
5     prescriber.
6         (4) A list of prescription drugs that were advertised
7     direct-to-consumers and reached Illinois residents,
8     together with the relevant annual expenditures in
9     connection with each such drug.
10         (5) All gifts, grants, or payments of any kind made
11     directly or indirectly to any patient advocacy group that
12     has members or otherwise operates within Illinois. Every
13     manufacturer or labeler must report the total annual amount
14     for each such patient advocacy group.
15         (6) All promotional or informational programs
16     conducted by the manufacturer or labeler for pharmacies in
17     Illinois.
18         (7) A copy of the manufacturer or labeler's most recent
19     federal income tax return.
20     (c) The following items are exempt from the reporting
21 requirements under this Section:
22         (1) All free samples of prescription drugs intended to
23     be distributed to patients.
24         (2) All payments of reasonable compensation and
25     reimbursement of expenses in connection with a bona fide
26     clinical trial. As used in this paragraph (2), "clinical



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1     trial" means an approved clinical trial conducted in
2     connection with a research study designed to answer
3     specific questions about vaccines, new therapies, or new
4     ways of using known treatments.
5         (3) All scholarships or other support for medical
6     students, residents, and fellows to attend significant
7     educational, scientific, or policy-making conferences of a
8     national, regional, or specialty medical or other
9     professional association if the recipient of the
10     scholarship or other support is selected by the
11     association.
12     (d) The Department may establish time lines and the
13 documentation, form, and manner of reporting required under
14 this Section to effectuate the purposes of this Section. The
15 Department shall report to the Commission on Government
16 Forecasting and Accountability, in an aggregate form, the
17 information reported to the Department under this Section.
18     (e) Notwithstanding any provision of law to the contrary,
19 information submitted to the Department pursuant to this
20 Section is confidential and is not a public record and is not
21 required to be made available for inspection and copying under
22 the Freedom of Information Act. Data compiled in aggregate form
23 by the Department for the purpose of reporting to the
24 Commission on Government Forecasting and Accountability as
25 required under subsection (d) is a public record as defined in
26 the Freedom of Information Act, as long as it does not reveal



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1 trade information that is protected by State or federal law.
2     (f) The Department shall establish programs aimed at
3 educating health care practitioners authorized to prescribe
4 prescription drugs about the relative costs and benefits of
5 various prescription drugs, with an emphasis on (i) authorizing
6 generic substitutes for brand-name drugs when available and
7 appropriate, (ii) prescribing established, less-costly drugs
8 instead of newer and more expensive drugs when appropriate, and
9 (iii) prescribing lower dosages of prescription drugs when
10 appropriate.
11     (g) The Department may assign its responsibilities under
12 this Section to the Special Advocate for Prescription Drugs
13 within the Department, as appropriate.