Illinois General Assembly - Full Text of HB1336
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Full Text of HB1336  97th General Assembly

HB1336 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1336

 

Introduced 2/9/2011, by Rep. Constance A. Howard

 

SYNOPSIS AS INTRODUCED:
 
New Act
5 ILCS 430/15-10
20 ILCS 415/19c.1  from Ch. 127, par. 63b119c.1
225 ILCS 60/22  from Ch. 111, par. 4400-22

    Creates the Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act. Prohibits Acts of torture and improper treatment perpetrated upon prisoners and detainees. Establishes standards of conduct relating to health care professionals who provide care to prisoners and detainees. Amends various Acts to make corresponding changes. Effective January 1, 2012.


LRB097 06705 RLC 46792 b

 

 

A BILL FOR

 

HB1336LRB097 06705 RLC 46792 b

1    AN ACT concerning torture of prisoners and detainees by
2health care professionals.
 
3    Be it enacted by the People of the State of Illinois,
4represented in the General Assembly:
 
5    Section 1. Short title. This Act may be cited as the
6Prohibition of Torture on Prisoners and Detainees by Health
7Care Professionals Act.
 
8    Section 5. Legislative policy and intent. This legislation
9is based on, and is intended to give effect to, international
10treaties and standards; federal, State and local law; and
11professional standards relating to torture, improper treatment
12of prisoners, and related matters. It is guided by 2 basic
13principles: (1) health care professionals shall be dedicated to
14providing the highest standard of health care, with compassion
15and respect for human dignity and rights; and (2) torture and
16improper treatment of prisoners are wrong and inconsistent with
17the practice of the health care professions. The General
18Assembly finds that the conduct prohibited by this Act violates
19the ethical and legal obligations of licensed health care
20professionals. This legislation will further protect the
21professionalism of Illinois State licensed health care
22professionals by authorizing and obligating them to refuse to
23participate in torture and improper treatment of prisoners,

 

 

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1which in turn will protect the life and health of the people of
2the State and those with whom Illinois licensed health care
3professionals interact. A health care professional who comes to
4the aid of a prisoner should not be presumed to be in violation
5when she or he is fulfilling the ethical principle of
6beneficence. In contrast, a health care professional who, for
7example, attends to a prisoner in order to allow torture or
8improper treatment to commence or continue, is not acting
9beneficently. Such practices are inconsistent with
10professional ethics and standards and are violations of this
11legislation. The General Assembly is mindful that ordinarily
12there are limits on the State's jurisdiction relating to
13conduct outside the State or under federal authority. However,
14it is proper for the State to regulate health care professional
15licensure in relation to a professional's conduct, even where
16the conduct occurs outside the State; certain wrongful
17out-of-state conduct is already grounds for professional
18discipline. Therefore, it is the General Assembly's intent that
19this legislation be applied to the fullest extent possible.
 
20    Section 10. Definitions. As used in this Act, unless the
21context clearly requires otherwise, the following terms have
22the following meanings:
23    "Health care professional" means any person licensed,
24registered, certified, or exempt to practice under the
25Acupuncture Practice Act, Clinical Psychologist Licensing Act,

 

 

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1Clinical Social Work and Social Work Practice Act, Illinois
2Dental Practice Act, Dietetic and Nutrition Services Practice
3Act, Marriage and Family Therapy Licensing Act, Massage
4Licensing Act, Medical Practice Act of 1987, Naprapathic
5Practice Act, Nurse Practice Act, Illinois Occupational
6Therapy Practice Act, Illinois Optometric Practice Act of 1987,
7Orthotics, Prosthetics, and Pedorthics Practice Act, Pharmacy
8Practice Act, Illinois Physical Therapy Act, Physician
9Assistant Practice Act of 1987, Podiatric Medical Practice Act
10of 1987, Respiratory Care Practice Act, Professional Counselor
11and Clinical Professional Counselor Licensing Act,
12Perfusionist Practice Act, or the Registered Surgical
13Assistant and Registered Surgical Technologist Title
14Protection Act.
15    "Torture" means any intentional act or intentional
16omission by which severe pain or suffering, whether physical or
17mental, is inflicted on a person for such purposes as obtaining
18from the person or from a third person information or a
19confession, punishing the person for an act the person or a
20third person has committed (including the holding of a belief
21or membership in any group) or is suspected of having
22committed, or intimidating or coercing the person or a third
23person, or for any reason based on discrimination of any kind.
24"Torture" does not include pain or suffering arising only from,
25inherent in, or incidental to lawful sanction.
26    "Improper treatment" means (i) cruel, inhuman or

 

 

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1degrading, treatment or punishment as defined by applicable
2international treaties and their corresponding interpreting
3bodies; or cruel and unusual punishment as defined in the
4United States Constitution; or (ii) any violation of subsection
5(d), (e), (f), or (g) of Section 15 of this Act.
6    "Torture" and "improper treatment" shall be interpreted in
7accordance with applicable international treaties, principles,
8and standards as well as the decisions, observations, and
9recommendations of the corresponding interpreting bodies. It
10is not an element of either "torture" or "improper treatment"
11that such acts be committed by a government or non-government
12actor, entity, or official; under color of law; or not under
13color of law.
14    "Prisoner" means any person who is subject to punishment,
15detention, incarceration, interrogation, intimidation or
16coercion, regardless of whether such action is performed or
17committed by a government or non-government actor, entity, or
18official; under color of law; or not under color of law.
19    "Adversely affect" a person's physical or mental health or
20condition does not include causing adverse effects that may
21arise from treatment or care when that treatment or care is
22performed in accordance with generally applicable legal,
23health, and professional standards and for the purposes of
24evaluating, treating, protecting, or improving the person's
25health.
26    "Interrogation" means the questioning related to law

 

 

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1enforcement, the enforcement of rules or regulations of a
2closed institution (such as a jail or other detention facility,
3police facility, prison, immigration facility, or psychiatric
4or military facility) or to military and national security
5intelligence gathering, designed to prevent harm or danger to
6individuals, the public, or national security, whether by a
7government or non-government actor, entity, or official.
8"Interrogation" shall also include questioning to aid or
9accomplish any illegal activity or purpose, whether by a
10government or non-government actor, entity, or official.
 
11    Section 15. Standards of conduct.
12    (a) It is an element of any violation of this Act that the
13actor knew or reasonably should have known that his or her
14conduct is of the kind prohibited under this Act. If a health
15care professional who operates in a closed institution, such as
16a jail or other detention facility, police facility, prison,
17immigration facility or psychiatric or military facility, is
18not given access by the institution to the information
19necessary to ascertain whether torture or improper treatment
20has occurred, is occurring, or will occur, in order to assess
21the nature of his or her conduct as covered by this Act, the
22health care professional must presume that the prisoner faces
23risk of torture or improper treatment.
24    (b) Every health care professional shall provide every
25prisoner under his or her professional care with care or

 

 

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1treatment consistent with generally applicable legal, health,
2and professional standards to the extent that he or she is
3reasonably able to do so under the circumstances, including
4protecting the confidentiality of patient information.
5    (c) In all clinical assessments relating to a prisoner,
6whether for therapeutic or evaluative purposes, health care
7professionals shall exercise their professional judgment
8independent of the interests of a government or other third
9party.
10    (d) No health care professional shall apply his or her
11knowledge or skills in relation to, engage in any professional
12relationship with, or perform professional services in
13relation to any prisoner where the purpose is not solely to
14evaluate, treat, protect, or improve the physical or mental
15health or condition of the prisoner, except as permitted by
16subsections (b) and (c) of this Section.
17    (e) No health care professional shall engage, directly or
18indirectly, in any act which constitutes participation in,
19complicity in, incitement to, assistance in, planning or design
20of, or attempt or conspiracy to commit torture or improper
21treatment of a prisoner. Prohibited forms of engagement include
22but are not limited to: (1) providing means, knowledge, or
23skills, including clinical findings or treatment, with the
24intent to facilitate the practice of torture or improper
25treatment; (2) permitting his or her knowledge, skills, or
26clinical findings or treatment to be used in the process of or

 

 

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1to facilitate torture or improper treatment; (3) examining,
2evaluating, or treating a prisoner to certify whether torture
3or improper treatment can begin, be continued, or be resumed;
4(4) being present while torture or improper treatment is being
5administered; (5) omitting or suppressing indications of
6torture or improper treatment from records or reports; and (6)
7altering health care records or reports to hide, misrepresent,
8or destroy evidence of torture or improper treatment.
9    (f) No health care professional shall apply his or her
10knowledge or skills or perform any professional service in
11order to assist in the punishment, detention, incarceration,
12intimidation, or coercion of a prisoner when such assistance is
13provided in a manner that may adversely affect the physical or
14mental health or condition of the prisoner, except as permitted
15by subsection (c) or (d) of this Section.
16    (g) No health care professional shall participate in the
17interrogation of a prisoner, including being present in the
18interrogation room, asking or suggesting questions, advising
19on the use of specific interrogation techniques, monitoring the
20interrogation, or medically or psychologically evaluating a
21person for the purpose of identifying potential interrogation
22methods or strategies. however, this subsection shall not bar a
23health care professional from engaging in conduct under
24subsection (d) of this Section.
25    (h) A health care professional may engage in the following
26conduct so long as it does not violate subsections (d) through

 

 

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1(g) of this Section, it does not adversely affect the physical
2or mental health or condition of a prisoner or potential
3subject, and is not otherwise unlawful:
4        (1) appropriately participating or aiding in the
5    investigation, prosecution, or defense of a criminal,
6    administrative, or civil matter;
7        (2) participating in an act that restrains a prisoner
8    or temporarily alters the physical or mental activity of a
9    prisoner, where the act complies with generally applicable
10    legal, health, and professional standards, is necessary
11    for the protection of the physical or mental health,
12    condition, or safety of the prisoner, other prisoners, or
13    persons caring for, guarding, or confining the prisoner;
14        (3) training related to the following purposes, so long
15    as it is not provided in support of specific ongoing or
16    anticipated interrogations:
17            (A) recognizing and responding to persons with
18        physical or mental illness or conditions,
19            (B) the possible physical and mental effects of
20        particular techniques and conditions of interrogation,
21        or
22            (C) the development of effective interrogation
23        strategies not involving the practice of torture or
24        improper treatment.
 
25    Section 20. Duty to report. A health care professional who

 

 

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1has reasonable grounds (not based solely on publicly available
2information) to believe that torture, improper treatment, or
3other conduct in violation of this Act has occurred, is
4occurring, or will occur shall, as soon as is possible without
5jeopardizing the physical safety of himself or herself, the
6prisoner, or other parties, report such conduct to:
7    (1) a government agency that the health care professional
8reasonably believes has legal authority to punish or prevent
9the continuation of torture or the improper treatment of a
10prisoner or conduct in violation of this Act and is reasonably
11likely to attempt to do so; or
12    (2) a governmental or non-governmental entity that the
13health care professional reasonably believes will notify such a
14government agency of the torture or the improper treatment of a
15prisoner or conduct in violation of this Act or take other
16action to publicize or prevent such torture, treatment or
17conduct; and
18    (3) In addition to reporting under paragraph (1) or (2) of
19this Section:
20        (A) in the case of an alleged violation by a health
21    care professional licensed under the Medical Practice Act
22    of 1987, a report shall be filed with the Illinois State
23    Medical Disciplinary Board; and
24        (B) in the case of an alleged violation by any other
25    health care professional licensed, registered, or
26    certified under any other licensing law, a report shall be

 

 

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1    filed with the Illinois State Medical Disciplinary Board;
2    provided that for the purpose of this paragraph, where a
3    person holds a license, registration, or certification
4    under the laws of a jurisdiction other than this State that
5    is for a profession substantially comparable to one listed
6    in Section 10, the person shall be deemed to be a health
7    care professional and the person's license, registration,
8    or certification shall be deemed to be under the
9    appropriate State law.
 
10    Section 25. Mitigation. The following may be considered in
11full or partial mitigation of a violation of this Act by the
12health care professional:
13    (1) compliance with Section 19c.1 of the Personnel Code; or
14    (2) cooperation in good faith with an investigation of a
15violation of this Act.
 
16    Section 30. Applicability. This Act applies to conduct
17taking place within or outside the State of Illinois, and
18without regard to whether the conduct is committed by a
19governmental or non-governmental entity, official, or actor or
20under actual or asserted color of law.
 
21    Section 35. Scope of practice not expanded. This Act shall
22not be construed to expand the lawful scope of practice of any
23health care professional.
 

 

 

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1    Section 40. Construction. This Act shall not be construed
2to mean that:
3    (1) conduct described by this Act does not already violate
4State law or constitute professional misconduct; or
5    (2) conduct other than that described by this Act does not
6violate other State law or otherwise constitute professional
7misconduct.
 
8    Section 105. The State Officials and Employees Ethics Act
9is amended by changing Section 15-10 as follows:
 
10    (5 ILCS 430/15-10)
11    Sec. 15-10. Protected activity. An officer, a member, a
12State employee, or a State agency shall not take any
13retaliatory action against a State employee because the State
14employee does any of the following:
15        (1) Discloses or threatens to disclose to a supervisor
16    or to a public body an activity, policy, or practice of any
17    officer, member, State agency, or other State employee that
18    the State employee reasonably believes is in violation of a
19    law, rule, or regulation.
20        (2) Provides information to or testifies before any
21    public body conducting an investigation, hearing, or
22    inquiry into any violation of a law, rule, or regulation by
23    any officer, member, State agency, or other State employee.

 

 

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1        (3) Assists or participates in a proceeding to enforce
2    the provisions of this Act.
3        (4) Reports or threatens to report any violation of the
4    Prohibition of Torture on Prisoners and Detainees by Health
5    Care Professionals Act relating to participation in
6    torture or improper treatment of prisoners by health care
7    professionals.
8(Source: P.A. 93-615, eff. 11-19-03; 93-617, eff. 12-9-03.)
 
9    Section 110. The Personnel Code is amended by changing
10Section 19c.1 as follows:
 
11    (20 ILCS 415/19c.1)  (from Ch. 127, par. 63b119c.1)
12    Sec. 19c.1. (1) In any case involving any disclosure of
13information by an employee which the employee reasonably
14believes evidences-
15    (i) a violation of any law, rule, or regulation; or
16    (ii) mismanagement, a gross waste of funds, an abuse of
17authority, or a substantial and specific danger to public
18health or safety if the disclosure is not specifically
19prohibited by law, the identity of the employee may not be
20disclosed without the consent of the employee during any
21investigation of the information and any related matters; or .
22    (iii) reports or threatens to report any violation of the
23Prohibition of Torture on Prisoners and Detainees by Health
24Care Professionals Act relating to participation in torture or

 

 

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1improper treatment of prisoners by health care professionals.
2    (2) No disciplinary action shall be taken against any
3employee for the disclosure of any alleged prohibited activity
4under investigation or for any related activity. For the
5purposes of this Section, disciplinary action means any
6retaliatory action taken against an employee, including but not
7limited to reprimand, suspension, discharge, demotion or
8denial of promotion or transfer; however, this subsection (2)
9does not apply to any report of a violation of the Prohibition
10of Torture on Prisoners and Detainees by Health Care
11Professionals Act relating to participation in torture or
12improper treatment of prisoners by health care professionals.
13(Source: P.A. 85-470.)
 
14    Section 115. The Medical Practice Act of 1987 is amended by
15changing Section 22 as follows:
 
16    (225 ILCS 60/22)  (from Ch. 111, par. 4400-22)
17    (Section scheduled to be repealed on November 30, 2011)
18    (Text of Section WITH the changes made by P.A. 94-677,
19which has been held unconstitutional)
20    Sec. 22. Disciplinary action.
21    (A) The Department may revoke, suspend, place on
22probationary status, refuse to renew, or take any other
23disciplinary action as the Department may deem proper with
24regard to the license or visiting professor permit of any

 

 

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1person issued under this Act to practice medicine, or to treat
2human ailments without the use of drugs and without operative
3surgery upon any of the following grounds:
4        (1) Performance of an elective abortion in any place,
5    locale, facility, or institution other than:
6            (a) a facility licensed pursuant to the Ambulatory
7        Surgical Treatment Center Act;
8            (b) an institution licensed under the Hospital
9        Licensing Act;
10            (c) an ambulatory surgical treatment center or
11        hospitalization or care facility maintained by the
12        State or any agency thereof, where such department or
13        agency has authority under law to establish and enforce
14        standards for the ambulatory surgical treatment
15        centers, hospitalization, or care facilities under its
16        management and control;
17            (d) ambulatory surgical treatment centers,
18        hospitalization or care facilities maintained by the
19        Federal Government; or
20            (e) ambulatory surgical treatment centers,
21        hospitalization or care facilities maintained by any
22        university or college established under the laws of
23        this State and supported principally by public funds
24        raised by taxation.
25        (2) Performance of an abortion procedure in a wilful
26    and wanton manner on a woman who was not pregnant at the

 

 

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1    time the abortion procedure was performed.
2        (3) The conviction of a felony in this or any other
3    jurisdiction, except as otherwise provided in subsection B
4    of this Section, whether or not related to practice under
5    this Act, or the entry of a guilty or nolo contendere plea
6    to a felony charge.
7        (4) Gross negligence in practice under this Act.
8        (5) Engaging in dishonorable, unethical or
9    unprofessional conduct of a character likely to deceive,
10    defraud or harm the public.
11        (6) Obtaining any fee by fraud, deceit, or
12    misrepresentation.
13        (7) Habitual or excessive use or abuse of drugs defined
14    in law as controlled substances, of alcohol, or of any
15    other substances which results in the inability to practice
16    with reasonable judgment, skill or safety.
17        (8) Practicing under a false or, except as provided by
18    law, an assumed name.
19        (9) Fraud or misrepresentation in applying for, or
20    procuring, a license under this Act or in connection with
21    applying for renewal of a license under this Act.
22        (10) Making a false or misleading statement regarding
23    their skill or the efficacy or value of the medicine,
24    treatment, or remedy prescribed by them at their direction
25    in the treatment of any disease or other condition of the
26    body or mind.

 

 

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1        (11) Allowing another person or organization to use
2    their license, procured under this Act, to practice.
3        (12) Disciplinary action of another state or
4    jurisdiction against a license or other authorization to
5    practice as a medical doctor, doctor of osteopathy, doctor
6    of osteopathic medicine or doctor of chiropractic, a
7    certified copy of the record of the action taken by the
8    other state or jurisdiction being prima facie evidence
9    thereof.
10        (13) Violation of any provision of this Act or of the
11    Medical Practice Act prior to the repeal of that Act, or
12    violation of the rules, or a final administrative action of
13    the Secretary, after consideration of the recommendation
14    of the Disciplinary Board.
15        (14) Violation of the prohibition against fee
16    splitting in Section 22.2 of this Act.
17        (15) A finding by the Medical Disciplinary Board that
18    the registrant after having his or her license placed on
19    probationary status or subjected to conditions or
20    restrictions violated the terms of the probation or failed
21    to comply with such terms or conditions.
22        (16) Abandonment of a patient.
23        (17) Prescribing, selling, administering,
24    distributing, giving or self-administering any drug
25    classified as a controlled substance (designated product)
26    or narcotic for other than medically accepted therapeutic

 

 

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1    purposes.
2        (18) Promotion of the sale of drugs, devices,
3    appliances or goods provided for a patient in such manner
4    as to exploit the patient for financial gain of the
5    physician.
6        (19) Offering, undertaking or agreeing to cure or treat
7    disease by a secret method, procedure, treatment or
8    medicine, or the treating, operating or prescribing for any
9    human condition by a method, means or procedure which the
10    licensee refuses to divulge upon demand of the Department.
11        (20) Immoral conduct in the commission of any act
12    including, but not limited to, commission of an act of
13    sexual misconduct related to the licensee's practice.
14        (21) Wilfully making or filing false records or reports
15    in his or her practice as a physician, including, but not
16    limited to, false records to support claims against the
17    medical assistance program of the Department of Healthcare
18    and Family Services (formerly Department of Public Aid)
19    under the Illinois Public Aid Code.
20        (22) Wilful omission to file or record, or wilfully
21    impeding the filing or recording, or inducing another
22    person to omit to file or record, medical reports as
23    required by law, or wilfully failing to report an instance
24    of suspected abuse or neglect as required by law.
25        (23) Being named as a perpetrator in an indicated
26    report by the Department of Children and Family Services

 

 

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1    under the Abused and Neglected Child Reporting Act, and
2    upon proof by clear and convincing evidence that the
3    licensee has caused a child to be an abused child or
4    neglected child as defined in the Abused and Neglected
5    Child Reporting Act.
6        (24) Solicitation of professional patronage by any
7    corporation, agents or persons, or profiting from those
8    representing themselves to be agents of the licensee.
9        (25) Gross and wilful and continued overcharging for
10    professional services, including filing false statements
11    for collection of fees for which services are not rendered,
12    including, but not limited to, filing such false statements
13    for collection of monies for services not rendered from the
14    medical assistance program of the Department of Healthcare
15    and Family Services (formerly Department of Public Aid)
16    under the Illinois Public Aid Code.
17        (26) A pattern of practice or other behavior which
18    demonstrates incapacity or incompetence to practice under
19    this Act.
20        (27) Mental illness or disability which results in the
21    inability to practice under this Act with reasonable
22    judgment, skill or safety.
23        (28) Physical illness, including, but not limited to,
24    deterioration through the aging process, or loss of motor
25    skill which results in a physician's inability to practice
26    under this Act with reasonable judgment, skill or safety.

 

 

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1        (29) Cheating on or attempt to subvert the licensing
2    examinations administered under this Act.
3        (30) Wilfully or negligently violating the
4    confidentiality between physician and patient except as
5    required by law.
6        (31) The use of any false, fraudulent, or deceptive
7    statement in any document connected with practice under
8    this Act.
9        (32) Aiding and abetting an individual not licensed
10    under this Act in the practice of a profession licensed
11    under this Act.
12        (33) Violating state or federal laws or regulations
13    relating to controlled substances, legend drugs, or
14    ephedra, as defined in the Ephedra Prohibition Act.
15        (34) Failure to report to the Department any adverse
16    final action taken against them by another licensing
17    jurisdiction (any other state or any territory of the
18    United States or any foreign state or country), by any peer
19    review body, by any health care institution, by any
20    professional society or association related to practice
21    under this Act, by any governmental agency, by any law
22    enforcement agency, or by any court for acts or conduct
23    similar to acts or conduct which would constitute grounds
24    for action as defined in this Section.
25        (35) Failure to report to the Department surrender of a
26    license or authorization to practice as a medical doctor, a

 

 

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1    doctor of osteopathy, a doctor of osteopathic medicine, or
2    doctor of chiropractic in another state or jurisdiction, or
3    surrender of membership on any medical staff or in any
4    medical or professional association or society, while
5    under disciplinary investigation by any of those
6    authorities or bodies, for acts or conduct similar to acts
7    or conduct which would constitute grounds for action as
8    defined in this Section.
9        (36) Failure to report to the Department any adverse
10    judgment, settlement, or award arising from a liability
11    claim related to acts or conduct similar to acts or conduct
12    which would constitute grounds for action as defined in
13    this Section.
14        (37) Failure to provide copies of medical records as
15    required by law.
16        (38) Failure to furnish the Department, its
17    investigators or representatives, relevant information,
18    legally requested by the Department after consultation
19    with the Chief Medical Coordinator or the Deputy Medical
20    Coordinator.
21        (39) Violating the Health Care Worker Self-Referral
22    Act.
23        (40) Willful failure to provide notice when notice is
24    required under the Parental Notice of Abortion Act of 1995.
25        (41) Failure to establish and maintain records of
26    patient care and treatment as required by this law.

 

 

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1        (42) Entering into an excessive number of written
2    collaborative agreements with licensed advanced practice
3    nurses resulting in an inability to adequately
4    collaborate.
5        (43) Repeated failure to adequately collaborate with a
6    licensed advanced practice nurse.
7    Except for actions involving the ground numbered (26), all
8proceedings to suspend, revoke, place on probationary status,
9or take any other disciplinary action as the Department may
10deem proper, with regard to a license on any of the foregoing
11grounds, must be commenced within 5 years next after receipt by
12the Department of a complaint alleging the commission of or
13notice of the conviction order for any of the acts described
14herein. Except for the grounds numbered (8), (9), (26), and
15(29), no action shall be commenced more than 10 years after the
16date of the incident or act alleged to have violated this
17Section. For actions involving the ground numbered (26), a
18pattern of practice or other behavior includes all incidents
19alleged to be part of the pattern of practice or other behavior
20that occurred or a report pursuant to Section 23 of this Act
21received within the 10-year period preceding the filing of the
22complaint. In the event of the settlement of any claim or cause
23of action in favor of the claimant or the reduction to final
24judgment of any civil action in favor of the plaintiff, such
25claim, cause of action or civil action being grounded on the
26allegation that a person licensed under this Act was negligent

 

 

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1in providing care, the Department shall have an additional
2period of 2 years from the date of notification to the
3Department under Section 23 of this Act of such settlement or
4final judgment in which to investigate and commence formal
5disciplinary proceedings under Section 36 of this Act, except
6as otherwise provided by law. The time during which the holder
7of the license was outside the State of Illinois shall not be
8included within any period of time limiting the commencement of
9disciplinary action by the Department.
10    The entry of an order or judgment by any circuit court
11establishing that any person holding a license under this Act
12is a person in need of mental treatment operates as a
13suspension of that license. That person may resume their
14practice only upon the entry of a Departmental order based upon
15a finding by the Medical Disciplinary Board that they have been
16determined to be recovered from mental illness by the court and
17upon the Disciplinary Board's recommendation that they be
18permitted to resume their practice.
19    The Department may refuse to issue or take disciplinary
20action concerning the license of any person who fails to file a
21return, or to pay the tax, penalty or interest shown in a filed
22return, or to pay any final assessment of tax, penalty or
23interest, as required by any tax Act administered by the
24Illinois Department of Revenue, until such time as the
25requirements of any such tax Act are satisfied as determined by
26the Illinois Department of Revenue.

 

 

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1    The Department, upon the recommendation of the
2Disciplinary Board, shall adopt rules which set forth standards
3to be used in determining:
4        (a) when a person will be deemed sufficiently
5    rehabilitated to warrant the public trust;
6        (b) what constitutes dishonorable, unethical or
7    unprofessional conduct of a character likely to deceive,
8    defraud, or harm the public;
9        (c) what constitutes immoral conduct in the commission
10    of any act, including, but not limited to, commission of an
11    act of sexual misconduct related to the licensee's
12    practice; and
13        (d) what constitutes gross negligence in the practice
14    of medicine.
15    However, no such rule shall be admissible into evidence in
16any civil action except for review of a licensing or other
17disciplinary action under this Act.
18    In enforcing this Section, the Medical Disciplinary Board,
19upon a showing of a possible violation, may compel any
20individual licensed to practice under this Act, or who has
21applied for licensure or a permit pursuant to this Act, to
22submit to a mental or physical examination, or both, as
23required by and at the expense of the Department. The examining
24physician or physicians shall be those specifically designated
25by the Disciplinary Board. The Medical Disciplinary Board or
26the Department may order the examining physician to present

 

 

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1testimony concerning this mental or physical examination of the
2licensee or applicant. No information shall be excluded by
3reason of any common law or statutory privilege relating to
4communication between the licensee or applicant and the
5examining physician. The individual to be examined may have, at
6his or her own expense, another physician of his or her choice
7present during all aspects of the examination. Failure of any
8individual to submit to mental or physical examination, when
9directed, shall be grounds for suspension of his or her license
10until such time as the individual submits to the examination if
11the Disciplinary Board finds, after notice and hearing, that
12the refusal to submit to the examination was without reasonable
13cause. If the Disciplinary Board finds a physician unable to
14practice because of the reasons set forth in this Section, the
15Disciplinary Board shall require such physician to submit to
16care, counseling, or treatment by physicians approved or
17designated by the Disciplinary Board, as a condition for
18continued, reinstated, or renewed licensure to practice. Any
19physician, whose license was granted pursuant to Sections 9,
2017, or 19 of this Act, or, continued, reinstated, renewed,
21disciplined or supervised, subject to such terms, conditions or
22restrictions who shall fail to comply with such terms,
23conditions or restrictions, or to complete a required program
24of care, counseling, or treatment, as determined by the Chief
25Medical Coordinator or Deputy Medical Coordinators, shall be
26referred to the Secretary for a determination as to whether the

 

 

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1licensee shall have their license suspended immediately,
2pending a hearing by the Disciplinary Board. In instances in
3which the Secretary immediately suspends a license under this
4Section, a hearing upon such person's license must be convened
5by the Disciplinary Board within 15 days after such suspension
6and completed without appreciable delay. The Disciplinary
7Board shall have the authority to review the subject
8physician's record of treatment and counseling regarding the
9impairment, to the extent permitted by applicable federal
10statutes and regulations safeguarding the confidentiality of
11medical records.
12    An individual licensed under this Act, affected under this
13Section, shall be afforded an opportunity to demonstrate to the
14Disciplinary Board that they can resume practice in compliance
15with acceptable and prevailing standards under the provisions
16of their license.
17    The Department may promulgate rules for the imposition of
18fines in disciplinary cases, not to exceed $10,000 for each
19violation of this Act. Fines may be imposed in conjunction with
20other forms of disciplinary action, but shall not be the
21exclusive disposition of any disciplinary action arising out of
22conduct resulting in death or injury to a patient. Any funds
23collected from such fines shall be deposited in the Medical
24Disciplinary Fund.
25    (B) The Department shall revoke the license or visiting
26permit of any person issued under this Act to practice medicine

 

 

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1or to treat human ailments without the use of drugs and without
2operative surgery, who has been convicted a second time of
3committing any felony under the Illinois Controlled Substances
4Act or the Methamphetamine Control and Community Protection
5Act, or who has been convicted a second time of committing a
6Class 1 felony under Sections 8A-3 and 8A-6 of the Illinois
7Public Aid Code. A person whose license or visiting permit is
8revoked under this subsection B of Section 22 of this Act shall
9be prohibited from practicing medicine or treating human
10ailments without the use of drugs and without operative
11surgery.
12    (C) The Medical Disciplinary Board shall recommend to the
13Department civil penalties and any other appropriate
14discipline in disciplinary cases when the Board finds that a
15physician willfully performed an abortion with actual
16knowledge that the person upon whom the abortion has been
17performed is a minor or an incompetent person without notice as
18required under the Parental Notice of Abortion Act of 1995.
19Upon the Board's recommendation, the Department shall impose,
20for the first violation, a civil penalty of $1,000 and for a
21second or subsequent violation, a civil penalty of $5,000.
22(Source: P.A. 94-566, eff. 9-11-05; 94-677, eff. 8-25-05;
2395-331, eff. 8-21-07; 96-608, eff. 8-24-09; 96-1000, eff.
247-2-10.)
 
25    (Text of Section WITHOUT the changes made by P.A. 94-677,

 

 

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1which has been held unconstitutional)
2    Sec. 22. Disciplinary action.
3    (A) The Department may revoke, suspend, place on
4probationary status, or take any other disciplinary action as
5the Department may deem proper with regard to the license or
6visiting professor permit of any person issued under this Act
7to practice medicine, or to treat human ailments without the
8use of drugs and without operative surgery upon any of the
9following grounds:
10        (1) Performance of an elective abortion in any place,
11    locale, facility, or institution other than:
12            (a) a facility licensed pursuant to the Ambulatory
13        Surgical Treatment Center Act;
14            (b) an institution licensed under the Hospital
15        Licensing Act;
16            (c) an ambulatory surgical treatment center or
17        hospitalization or care facility maintained by the
18        State or any agency thereof, where such department or
19        agency has authority under law to establish and enforce
20        standards for the ambulatory surgical treatment
21        centers, hospitalization, or care facilities under its
22        management and control;
23            (d) ambulatory surgical treatment centers,
24        hospitalization or care facilities maintained by the
25        Federal Government; or
26            (e) ambulatory surgical treatment centers,

 

 

HB1336- 28 -LRB097 06705 RLC 46792 b

1        hospitalization or care facilities maintained by any
2        university or college established under the laws of
3        this State and supported principally by public funds
4        raised by taxation.
5        (2) Performance of an abortion procedure in a wilful
6    and wanton manner on a woman who was not pregnant at the
7    time the abortion procedure was performed.
8        (3) The conviction of a felony in this or any other
9    jurisdiction, except as otherwise provided in subsection B
10    of this Section, whether or not related to practice under
11    this Act, or the entry of a guilty or nolo contendere plea
12    to a felony charge.
13        (4) Gross negligence in practice under this Act.
14        (5) Engaging in dishonorable, unethical or
15    unprofessional conduct of a character likely to deceive,
16    defraud or harm the public.
17        (6) Obtaining any fee by fraud, deceit, or
18    misrepresentation.
19        (7) Habitual or excessive use or abuse of drugs defined
20    in law as controlled substances, of alcohol, or of any
21    other substances which results in the inability to practice
22    with reasonable judgment, skill or safety.
23        (8) Practicing under a false or, except as provided by
24    law, an assumed name.
25        (9) Fraud or misrepresentation in applying for, or
26    procuring, a license under this Act or in connection with

 

 

HB1336- 29 -LRB097 06705 RLC 46792 b

1    applying for renewal of a license under this Act.
2        (10) Making a false or misleading statement regarding
3    their skill or the efficacy or value of the medicine,
4    treatment, or remedy prescribed by them at their direction
5    in the treatment of any disease or other condition of the
6    body or mind.
7        (11) Allowing another person or organization to use
8    their license, procured under this Act, to practice.
9        (12) Disciplinary action of another state or
10    jurisdiction against a license or other authorization to
11    practice as a medical doctor, doctor of osteopathy, doctor
12    of osteopathic medicine or doctor of chiropractic, a
13    certified copy of the record of the action taken by the
14    other state or jurisdiction being prima facie evidence
15    thereof.
16        (13) Violation of any provision of this Act or of the
17    Medical Practice Act prior to the repeal of that Act, or
18    violation of the rules, or a final administrative action of
19    the Director, after consideration of the recommendation of
20    the Disciplinary Board.
21        (14) Violation of the prohibition against fee
22    splitting in Section 22.2 of this Act.
23        (15) A finding by the Medical Disciplinary Board that
24    the registrant after having his or her license placed on
25    probationary status or subjected to conditions or
26    restrictions violated the terms of the probation or failed

 

 

HB1336- 30 -LRB097 06705 RLC 46792 b

1    to comply with such terms or conditions.
2        (16) Abandonment of a patient.
3        (17) Prescribing, selling, administering,
4    distributing, giving or self-administering any drug
5    classified as a controlled substance (designated product)
6    or narcotic for other than medically accepted therapeutic
7    purposes.
8        (18) Promotion of the sale of drugs, devices,
9    appliances or goods provided for a patient in such manner
10    as to exploit the patient for financial gain of the
11    physician.
12        (19) Offering, undertaking or agreeing to cure or treat
13    disease by a secret method, procedure, treatment or
14    medicine, or the treating, operating or prescribing for any
15    human condition by a method, means or procedure which the
16    licensee refuses to divulge upon demand of the Department.
17        (20) Immoral conduct in the commission of any act
18    including, but not limited to, commission of an act of
19    sexual misconduct related to the licensee's practice.
20        (21) Wilfully making or filing false records or reports
21    in his or her practice as a physician, including, but not
22    limited to, false records to support claims against the
23    medical assistance program of the Department of Healthcare
24    and Family Services (formerly Department of Public Aid)
25    under the Illinois Public Aid Code.
26        (22) Wilful omission to file or record, or wilfully

 

 

HB1336- 31 -LRB097 06705 RLC 46792 b

1    impeding the filing or recording, or inducing another
2    person to omit to file or record, medical reports as
3    required by law, or wilfully failing to report an instance
4    of suspected abuse or neglect as required by law.
5        (23) Being named as a perpetrator in an indicated
6    report by the Department of Children and Family Services
7    under the Abused and Neglected Child Reporting Act, and
8    upon proof by clear and convincing evidence that the
9    licensee has caused a child to be an abused child or
10    neglected child as defined in the Abused and Neglected
11    Child Reporting Act.
12        (24) Solicitation of professional patronage by any
13    corporation, agents or persons, or profiting from those
14    representing themselves to be agents of the licensee.
15        (25) Gross and wilful and continued overcharging for
16    professional services, including filing false statements
17    for collection of fees for which services are not rendered,
18    including, but not limited to, filing such false statements
19    for collection of monies for services not rendered from the
20    medical assistance program of the Department of Healthcare
21    and Family Services (formerly Department of Public Aid)
22    under the Illinois Public Aid Code.
23        (26) A pattern of practice or other behavior which
24    demonstrates incapacity or incompetence to practice under
25    this Act.
26        (27) Mental illness or disability which results in the

 

 

HB1336- 32 -LRB097 06705 RLC 46792 b

1    inability to practice under this Act with reasonable
2    judgment, skill or safety.
3        (28) Physical illness, including, but not limited to,
4    deterioration through the aging process, or loss of motor
5    skill which results in a physician's inability to practice
6    under this Act with reasonable judgment, skill or safety.
7        (29) Cheating on or attempt to subvert the licensing
8    examinations administered under this Act.
9        (30) Wilfully or negligently violating the
10    confidentiality between physician and patient except as
11    required by law.
12        (31) The use of any false, fraudulent, or deceptive
13    statement in any document connected with practice under
14    this Act.
15        (32) Aiding and abetting an individual not licensed
16    under this Act in the practice of a profession licensed
17    under this Act.
18        (33) Violating state or federal laws or regulations
19    relating to controlled substances.
20        (34) Failure to report to the Department any adverse
21    final action taken against them by another licensing
22    jurisdiction (any other state or any territory of the
23    United States or any foreign state or country), by any peer
24    review body, by any health care institution, by any
25    professional society or association related to practice
26    under this Act, by any governmental agency, by any law

 

 

HB1336- 33 -LRB097 06705 RLC 46792 b

1    enforcement agency, or by any court for acts or conduct
2    similar to acts or conduct which would constitute grounds
3    for action as defined in this Section.
4        (35) Failure to report to the Department surrender of a
5    license or authorization to practice as a medical doctor, a
6    doctor of osteopathy, a doctor of osteopathic medicine, or
7    doctor of chiropractic in another state or jurisdiction, or
8    surrender of membership on any medical staff or in any
9    medical or professional association or society, while
10    under disciplinary investigation by any of those
11    authorities or bodies, for acts or conduct similar to acts
12    or conduct which would constitute grounds for action as
13    defined in this Section.
14        (36) Failure to report to the Department any adverse
15    judgment, settlement, or award arising from a liability
16    claim related to acts or conduct similar to acts or conduct
17    which would constitute grounds for action as defined in
18    this Section.
19        (37) Failure to provide copies of medical records as
20    required by law.
21        (38) Failure to furnish the Department, its
22    investigators or representatives, relevant information,
23    legally requested by the Department after consultation
24    with the Chief Medical Coordinator or the Deputy Medical
25    Coordinator.
26        (39) Violating the Health Care Worker Self-Referral

 

 

HB1336- 34 -LRB097 06705 RLC 46792 b

1    Act.
2        (40) Willful failure to provide notice when notice is
3    required under the Parental Notice of Abortion Act of 1995.
4        (41) Failure to establish and maintain records of
5    patient care and treatment as required by this law.
6        (42) Entering into an excessive number of written
7    collaborative agreements with licensed advanced practice
8    nurses resulting in an inability to adequately
9    collaborate.
10        (43) Repeated failure to adequately collaborate with a
11    licensed advanced practice nurse.
12        (44) Any violation of the Prohibition of Torture on
13    Prisoners and Detainees by Health Care Professionals Act
14    relating to participation in torture or improper treatment
15    of prisoners by health care professionals, subject to
16    mitigation under that Act.
17    All proceedings to suspend, revoke, place on probationary
18status, or take any other disciplinary action as the Department
19may deem proper, with regard to a license on any of the
20foregoing grounds, must be commenced within 3 years next after
21receipt by the Department of a complaint alleging the
22commission of or notice of the conviction order for any of the
23acts described herein. Except for the grounds numbered (8), (9)
24and (29), no action shall be commenced more than 5 years after
25the date of the incident or act alleged to have violated this
26Section. In the event of the settlement of any claim or cause

 

 

HB1336- 35 -LRB097 06705 RLC 46792 b

1of action in favor of the claimant or the reduction to final
2judgment of any civil action in favor of the plaintiff, such
3claim, cause of action or civil action being grounded on the
4allegation that a person licensed under this Act was negligent
5in providing care, the Department shall have an additional
6period of one year from the date of notification to the
7Department under Section 23 of this Act of such settlement or
8final judgment in which to investigate and commence formal
9disciplinary proceedings under Section 36 of this Act, except
10as otherwise provided by law. The time during which the holder
11of the license was outside the State of Illinois shall not be
12included within any period of time limiting the commencement of
13disciplinary action by the Department.
14    The entry of an order or judgment by any circuit court
15establishing that any person holding a license under this Act
16is a person in need of mental treatment operates as a
17suspension of that license. That person may resume their
18practice only upon the entry of a Departmental order based upon
19a finding by the Medical Disciplinary Board that they have been
20determined to be recovered from mental illness by the court and
21upon the Disciplinary Board's recommendation that they be
22permitted to resume their practice.
23    The Department may refuse to issue or take disciplinary
24action concerning the license of any person who fails to file a
25return, or to pay the tax, penalty or interest shown in a filed
26return, or to pay any final assessment of tax, penalty or

 

 

HB1336- 36 -LRB097 06705 RLC 46792 b

1interest, as required by any tax Act administered by the
2Illinois Department of Revenue, until such time as the
3requirements of any such tax Act are satisfied as determined by
4the Illinois Department of Revenue.
5    The Department, upon the recommendation of the
6Disciplinary Board, shall adopt rules which set forth standards
7to be used in determining:
8        (a) when a person will be deemed sufficiently
9    rehabilitated to warrant the public trust;
10        (b) what constitutes dishonorable, unethical or
11    unprofessional conduct of a character likely to deceive,
12    defraud, or harm the public;
13        (c) what constitutes immoral conduct in the commission
14    of any act, including, but not limited to, commission of an
15    act of sexual misconduct related to the licensee's
16    practice; and
17        (d) what constitutes gross negligence in the practice
18    of medicine.
19    However, no such rule shall be admissible into evidence in
20any civil action except for review of a licensing or other
21disciplinary action under this Act.
22    In enforcing this Section, the Medical Disciplinary Board,
23upon a showing of a possible violation, may compel any
24individual licensed to practice under this Act, or who has
25applied for licensure or a permit pursuant to this Act, to
26submit to a mental or physical examination, or both, as

 

 

HB1336- 37 -LRB097 06705 RLC 46792 b

1required by and at the expense of the Department. The examining
2physician or physicians shall be those specifically designated
3by the Disciplinary Board. The Medical Disciplinary Board or
4the Department may order the examining physician to present
5testimony concerning this mental or physical examination of the
6licensee or applicant. No information shall be excluded by
7reason of any common law or statutory privilege relating to
8communication between the licensee or applicant and the
9examining physician. The individual to be examined may have, at
10his or her own expense, another physician of his or her choice
11present during all aspects of the examination. Failure of any
12individual to submit to mental or physical examination, when
13directed, shall be grounds for suspension of his or her license
14until such time as the individual submits to the examination if
15the Disciplinary Board finds, after notice and hearing, that
16the refusal to submit to the examination was without reasonable
17cause. If the Disciplinary Board finds a physician unable to
18practice because of the reasons set forth in this Section, the
19Disciplinary Board shall require such physician to submit to
20care, counseling, or treatment by physicians approved or
21designated by the Disciplinary Board, as a condition for
22continued, reinstated, or renewed licensure to practice. Any
23physician, whose license was granted pursuant to Sections 9,
2417, or 19 of this Act, or, continued, reinstated, renewed,
25disciplined or supervised, subject to such terms, conditions or
26restrictions who shall fail to comply with such terms,

 

 

HB1336- 38 -LRB097 06705 RLC 46792 b

1conditions or restrictions, or to complete a required program
2of care, counseling, or treatment, as determined by the Chief
3Medical Coordinator or Deputy Medical Coordinators, shall be
4referred to the Director for a determination as to whether the
5licensee shall have their license suspended immediately,
6pending a hearing by the Disciplinary Board. In instances in
7which the Director immediately suspends a license under this
8Section, a hearing upon such person's license must be convened
9by the Disciplinary Board within 15 days after such suspension
10and completed without appreciable delay. The Disciplinary
11Board shall have the authority to review the subject
12physician's record of treatment and counseling regarding the
13impairment, to the extent permitted by applicable federal
14statutes and regulations safeguarding the confidentiality of
15medical records.
16    An individual licensed under this Act, affected under this
17Section, shall be afforded an opportunity to demonstrate to the
18Disciplinary Board that they can resume practice in compliance
19with acceptable and prevailing standards under the provisions
20of their license.
21    The Department may promulgate rules for the imposition of
22fines in disciplinary cases, not to exceed $5,000 for each
23violation of this Act. Fines may be imposed in conjunction with
24other forms of disciplinary action, but shall not be the
25exclusive disposition of any disciplinary action arising out of
26conduct resulting in death or injury to a patient. Any funds

 

 

HB1336- 39 -LRB097 06705 RLC 46792 b

1collected from such fines shall be deposited in the Medical
2Disciplinary Fund.
3    (B) The Department shall revoke the license or visiting
4permit of any person issued under this Act to practice medicine
5or to treat human ailments without the use of drugs and without
6operative surgery, who has been convicted a second time of
7committing any felony under the Illinois Controlled Substances
8Act or the Methamphetamine Control and Community Protection
9Act, or who has been convicted a second time of committing a
10Class 1 felony under Sections 8A-3 and 8A-6 of the Illinois
11Public Aid Code. A person whose license or visiting permit is
12revoked under this subsection B of Section 22 of this Act shall
13be prohibited from practicing medicine or treating human
14ailments without the use of drugs and without operative
15surgery.
16    (C) The Medical Disciplinary Board shall recommend to the
17Department civil penalties and any other appropriate
18discipline in disciplinary cases when the Board finds that a
19physician willfully performed an abortion with actual
20knowledge that the person upon whom the abortion has been
21performed is a minor or an incompetent person without notice as
22required under the Parental Notice of Abortion Act of 1995.
23Upon the Board's recommendation, the Department shall impose,
24for the first violation, a civil penalty of $1,000 and for a
25second or subsequent violation, a civil penalty of $5,000.
26(Source: P.A. 94-566, eff. 9-11-05; 95-331, eff. 8-21-07;

 

 

HB1336- 40 -LRB097 06705 RLC 46792 b

196-608, eff. 8-24-09; 96-1000, eff. 7-2-10.)
 
2    Section 997. Severability. The provisions of this Act are
3severable under Section 1.31 of the Statute on Statutes.
 
4    Section 999. Effective date. This Act takes effect January
51, 2012.