Full Text of HB2362 97th General Assembly
HB2362ham001 97TH GENERAL ASSEMBLY | Rep. Chapin Rose Filed: 3/24/2011
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| 1 | | AMENDMENT TO HOUSE BILL 2362
| 2 | | AMENDMENT NO. ______. Amend House Bill 2362 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Mental Health and Developmental | 5 | | Disabilities Confidentiality Act is amended by changing | 6 | | Section 10 as follows:
| 7 | | (740 ILCS 110/10) (from Ch. 91 1/2, par. 810)
| 8 | | Sec. 10. (a) Except as provided herein, in any civil, | 9 | | criminal,
administrative, or legislative proceeding, or in any | 10 | | proceeding preliminary
thereto, a recipient, and a therapist on | 11 | | behalf and in the interest of a
recipient, has the privilege to | 12 | | refuse to disclose and to prevent the
disclosure of the | 13 | | recipient's record or communications.
| 14 | | (1) Records and communications may be disclosed in a | 15 | | civil, criminal
or administrative proceeding in which the | 16 | | recipient introduces his mental
condition or any aspect of |
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| 1 | | his services received for such condition as an
element of | 2 | | his claim or defense, if and only to the extent the court | 3 | | in
which the proceedings have been brought, or, in the case | 4 | | of an administrative
proceeding, the court to which an | 5 | | appeal or other action for review of an
administrative | 6 | | determination may be taken, finds, after in camera
| 7 | | examination of testimony or other evidence, that it is | 8 | | relevant, probative,
not unduly prejudicial or | 9 | | inflammatory, and otherwise clearly
admissible; that other | 10 | | satisfactory evidence is demonstrably unsatisfactory
as | 11 | | evidence of the facts sought to be established by such | 12 | | evidence; and
that disclosure is more important to the | 13 | | interests of substantial justice
than protection from | 14 | | injury to the therapist-recipient relationship or to
the | 15 | | recipient or other whom disclosure is likely to harm. | 16 | | Except in a criminal
proceeding in which the recipient, who | 17 | | is accused in that proceeding, raises
the defense of | 18 | | insanity, no record or communication between a therapist
| 19 | | and a recipient shall be deemed relevant for purposes of | 20 | | this subsection,
except the fact of treatment, the cost of | 21 | | services and the ultimate
diagnosis unless the party | 22 | | seeking disclosure of the communication clearly
| 23 | | establishes in the trial court a compelling need for its | 24 | | production.
However, for purposes of this Act, in any | 25 | | action brought or defended under
the Illinois Marriage and | 26 | | Dissolution of Marriage Act, or in any action in
which pain |
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| 1 | | and suffering is an element of the claim, mental condition | 2 | | shall
not be deemed to be introduced merely by making such | 3 | | claim and shall be
deemed to be introduced only if the | 4 | | recipient or a witness on his behalf
first testifies | 5 | | concerning the record or communication.
| 6 | | (2) Records or communications may be disclosed in a | 7 | | civil proceeding after
the recipient's death when the | 8 | | recipient's physical or mental condition
has been | 9 | | introduced as an element of a claim or defense by any party | 10 | | claiming
or defending through or as a beneficiary of the | 11 | | recipient, provided the
court finds, after in camera | 12 | | examination of the evidence, that it is relevant,
| 13 | | probative, and otherwise clearly admissible; that other | 14 | | satisfactory evidence
is not available regarding the facts | 15 | | sought to be established by such evidence;
and that | 16 | | disclosure is more important to the interests of | 17 | | substantial justice
than protection from any injury which | 18 | | disclosure is likely to cause.
| 19 | | (3) In the event of a claim made or an action filed by | 20 | | a recipient, or,
following the recipient's death, by any | 21 | | party claiming as a beneficiary
of the recipient for injury | 22 | | caused in the course of providing services to such | 23 | | recipient, the therapist and other persons whose actions
| 24 | | are alleged
to have been the cause of injury may disclose | 25 | | pertinent records and
communications to an attorney or | 26 | | attorneys engaged to render advice about
and to provide |
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| 1 | | representation in connection with such matter and to | 2 | | persons
working under the supervision of such attorney or | 3 | | attorneys, and may
testify as to such records or
| 4 | | communication in any administrative, judicial
or discovery | 5 | | proceeding for the purpose of preparing and presenting a
| 6 | | defense against such claim or action.
| 7 | | (4) Records and communications made to or by a | 8 | | therapist in the course
of examination ordered by a court | 9 | | for good cause shown may, if otherwise
relevant and | 10 | | admissible, be disclosed in a civil, criminal,
or | 11 | | administrative proceeding in which the recipient is a party | 12 | | or in
appropriate pretrial proceedings, provided such | 13 | | court has found that the
recipient has been as adequately | 14 | | and as effectively as possible informed
before submitting | 15 | | to such examination that such records and communications
| 16 | | would not be considered confidential or privileged. Such | 17 | | records and
communications shall be admissible only as to | 18 | | issues involving the
recipient's physical or mental | 19 | | condition and only to the extent that these
are germane to | 20 | | such proceedings.
| 21 | | (5) Records and communications may be disclosed in a | 22 | | proceeding under
the Probate Act of 1975, to determine a | 23 | | recipient's competency or need for
guardianship, provided | 24 | | that the disclosure is made only with respect to that | 25 | | issue.
| 26 | | (6) Records and communications may be disclosed when |
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| 1 | | such are made during
treatment which the recipient is | 2 | | ordered to undergo to render him fit to
stand trial on a | 3 | | criminal charge, provided that the disclosure is made only
| 4 | | with respect to the issue of fitness to stand trial. | 5 | | Records and communications made to or by a therapist in the | 6 | | course of an assessment, diagnosis, screening, or | 7 | | treatment at an outpatient facility, a residential | 8 | | treatment facility, or a local jail or detention center may | 9 | | be disclosed to a court-appointed therapist, psychologist, | 10 | | or psychiatrist for use in determining a person's fitness | 11 | | to stand trial. Such records and communications shall be | 12 | | admissible only as to issues involving the recipient's | 13 | | physical or mental condition and only to the extent that | 14 | | these are germane to such proceedings.
| 15 | | (7) Records and communications of the recipient may be | 16 | | disclosed in any
civil or administrative proceeding | 17 | | involving the validity of or benefits
under a life, | 18 | | accident, health or disability insurance policy or | 19 | | certificate,
or Health Care Service Plan Contract, | 20 | | insuring the recipient, but only if
and to the extent that | 21 | | the recipient's mental condition, or treatment or
services | 22 | | in connection therewith, is a material element of any claim | 23 | | or
defense of any party, provided that information sought | 24 | | or disclosed shall
not be redisclosed except in connection | 25 | | with the proceeding in which
disclosure is made.
| 26 | | (8) Records or communications may be disclosed when |
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| 1 | | such are relevant
to a matter in issue in any action | 2 | | brought under this Act and proceedings
preliminary | 3 | | thereto, provided that any information so disclosed shall | 4 | | not
be utilized for any other purpose nor be redisclosed | 5 | | except in connection
with such action or preliminary | 6 | | proceedings.
| 7 | | (9) Records and communications of the recipient may be | 8 | | disclosed in
investigations of and trials for homicide when | 9 | | the disclosure relates directly
to the fact or immediate | 10 | | circumstances of the homicide.
| 11 | | (10) Records and communications of a deceased | 12 | | recipient may be
disclosed to a coroner conducting a | 13 | | preliminary investigation into the
recipient's death under | 14 | | Section 3-3013 of the Counties Code. However,
records and | 15 | | communications of the deceased recipient disclosed in an
| 16 | | investigation shall be limited solely to the deceased | 17 | | recipient's records
and communications relating to the | 18 | | factual circumstances of the incident
being investigated | 19 | | in a mental health facility.
| 20 | | (11) Records and communications of a recipient shall be | 21 | | disclosed in a
proceeding
where a petition or motion is | 22 | | filed under the Juvenile Court Act of 1987 and
the | 23 | | recipient is
named as a parent, guardian, or legal | 24 | | custodian of a minor who is the subject
of a petition for | 25 | | wardship as
described in Section
2-3 of that Act or a minor | 26 | | who is the subject of a petition for wardship as
described |
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| 1 | | in Section 2-4 of that
Act alleging the
minor is abused, | 2 | | neglected, or dependent or the recipient is named as a | 3 | | parent
of a child
who is the subject of
a petition, | 4 | | supplemental petition, or motion to appoint a guardian with | 5 | | the
power to consent to
adoption under Section 2-29 of the | 6 | | Juvenile Court Act
of 1987.
| 7 | | (12) Records and communications of a recipient may be
| 8 | | disclosed when disclosure is necessary to collect sums or | 9 | | receive
third party payment representing charges for | 10 | | mental health or
developmental disabilities services | 11 | | provided by a therapist or
agency to a recipient; however, | 12 | | disclosure shall be limited to
information needed to pursue | 13 | | collection, and the information so
disclosed may not be | 14 | | used for any other purposes nor may it be
redisclosed | 15 | | except in connection with collection activities.
Whenever | 16 | | records are disclosed pursuant to this subdivision (12), | 17 | | the
recipient of the records shall be advised in writing | 18 | | that any person who
discloses mental health records and | 19 | | communications in violation of this Act may
be subject to | 20 | | civil liability pursuant to Section 15 of this Act or to | 21 | | criminal
penalties pursuant to Section 16 of this Act or | 22 | | both.
| 23 | | (b) Before a disclosure is made under subsection (a), any | 24 | | party to the
proceeding or any other interested person may | 25 | | request an in camera review
of the record or communications to | 26 | | be disclosed. The court or agency
conducting the proceeding may |
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| 1 | | hold an in camera review on its own motion.
When, contrary to | 2 | | the express wish of the recipient, the therapist asserts
a | 3 | | privilege on behalf and in the interest of a recipient, the | 4 | | court may
require that the therapist, in an in camera hearing, | 5 | | establish that
disclosure is not in the best interest of the | 6 | | recipient. The court or
agency may prevent disclosure or limit | 7 | | disclosure to the extent that other
admissible evidence is | 8 | | sufficient to establish the facts in issue. The
court or agency | 9 | | may enter such orders as may be necessary in order to
protect | 10 | | the confidentiality, privacy, and safety of the recipient or of
| 11 | | other persons. Any order to disclose or to not disclose shall | 12 | | be
considered a final order for purposes of appeal and shall be | 13 | | subject to
interlocutory appeal.
| 14 | | (c) A recipient's records and communications may be | 15 | | disclosed to a
duly authorized committee, commission or | 16 | | subcommittee of the General
Assembly which possesses subpoena | 17 | | and hearing powers, upon a written
request approved by a | 18 | | majority vote of the committee, commission or
subcommittee | 19 | | members. The committee, commission or subcommittee may
request | 20 | | records only for the purposes of investigating or studying
| 21 | | possible violations of recipient rights. The request shall | 22 | | state the
purpose for which disclosure is sought.
| 23 | | The facility shall notify the recipient, or his guardian, | 24 | | and therapist in
writing of any disclosure request under this | 25 | | subsection within 5 business
days after such request. Such | 26 | | notification shall also inform the
recipient, or guardian, and |
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| 1 | | therapist of their right to object to the
disclosure within 10 | 2 | | business days after receipt of the notification and
shall | 3 | | include the name, address and telephone number of the
| 4 | | committee, commission or subcommittee member or staff person | 5 | | with whom an
objection shall be filed. If no objection has been | 6 | | filed within 15
business days after the request for disclosure, | 7 | | the facility shall disclose
the records and communications to | 8 | | the committee, commission or
subcommittee. If an objection has | 9 | | been filed within 15 business days after
the request for | 10 | | disclosure, the facility shall disclose the records and
| 11 | | communications only after the committee, commission or | 12 | | subcommittee has
permitted the recipient, guardian or | 13 | | therapist to present his objection in
person before it and has | 14 | | renewed its request for disclosure by a majority
vote of its | 15 | | members.
| 16 | | Disclosure under this subsection shall not occur until all | 17 | | personally
identifiable data of the recipient and provider are | 18 | | removed from the
records and communications. Disclosure under | 19 | | this subsection shall not
occur in any public proceeding.
| 20 | | (d) No party to any proceeding described under paragraphs | 21 | | (1), (2),
(3), (4), (7), or (8) of subsection (a) of this | 22 | | Section, nor his or
her attorney, shall serve a subpoena | 23 | | seeking to obtain access to records or
communications under | 24 | | this Act unless the subpoena is accompanied by a
written order | 25 | | issued by a judge, authorizing the disclosure of the records
or | 26 | | the issuance of the subpoena. No such written order shall be |
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| 1 | | issued without written notice of the motion to the recipient | 2 | | and the treatment provider. Prior to issuance of the order, | 3 | | each party or other person entitled to notice shall be | 4 | | permitted an opportunity to be heard pursuant to subsection (b) | 5 | | of this Section. No person shall comply with a subpoena for
| 6 | | records or communications under this Act, unless the subpoena | 7 | | is
accompanied by a written order authorizing the issuance of | 8 | | the subpoena or
the disclosure of the records. Each subpoena | 9 | | duces tecum issued by a court or administrative agency or | 10 | | served on any person pursuant to this subsection (d) shall | 11 | | include the following language: "No person shall comply with a | 12 | | subpoena for mental health records or communications pursuant | 13 | | to Section 10 of the Mental Health and Developmental | 14 | | Disabilities Confidentiality Act, 740 ILCS 110/10, unless the | 15 | | subpoena is accompanied by a written order that authorizes the | 16 | | issuance of the subpoena and the disclosure of records or | 17 | | communications."
| 18 | | (e) When a person has been transported by a peace officer | 19 | | to a mental
health facility, then upon the request of a peace | 20 | | officer, if the person is
allowed to leave the mental health | 21 | | facility within 48 hours of arrival,
excluding Saturdays, | 22 | | Sundays, and holidays, the facility director shall notify
the | 23 | | local law enforcement authority prior to the release of the | 24 | | person. The
local law enforcement authority may re-disclose the | 25 | | information as necessary to
alert the appropriate enforcement | 26 | | or prosecuting authority.
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| 1 | | (f) A recipient's records and communications shall be | 2 | | disclosed to the
Inspector General of the Department of Human | 3 | | Services within 10 business days
of a request by the Inspector | 4 | | General
(i) in the course of an investigation authorized by the | 5 | | Department of Human Services Act and applicable rule or (ii) | 6 | | during the course of an assessment authorized by the Abuse of | 7 | | Adults with Disabilities Intervention Act and applicable rule. | 8 | | The request
shall be
in writing and signed by the Inspector | 9 | | General or his or her designee. The
request shall state the | 10 | | purpose for which disclosure is sought. Any person who
| 11 | | knowingly and willfully refuses to comply with such a request | 12 | | is guilty of a
Class A misdemeanor. A recipient's records and | 13 | | communications shall also be disclosed pursuant to subsection | 14 | | (g-5) of Section 1-17 of the Department of Human Services Act | 15 | | in testimony at health care worker registry hearings or | 16 | | preliminary proceedings when such are relevant to the matter in | 17 | | issue, provided that any information so disclosed shall not be | 18 | | utilized for any other purpose nor be redisclosed except in | 19 | | connection with such action or preliminary proceedings.
| 20 | | (Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10; | 21 | | 96-1453, eff. 8-20-10.)".
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