Illinois General Assembly - Full Text of SB2265
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Full Text of SB2265  102nd General Assembly




State of Illinois
2021 and 2022


Introduced 2/26/2021, by Sen. Dave Syverson


210 ILCS 45/2-106.1

    Amends the Nursing Home Care Act. In provisions requiring the Department of Public Health to adopt a protocol specifying how informed consent for psychotropic medication may be obtained or refused that requires a discussion between the resident or the resident's surrogate decision maker and the resident's physician, a registered pharmacist, or a licensed nurse about the possible risks and benefits of a recommended medication and the use of standardized consent forms designated by the Department, (i) removes language prohibiting the registered pharmacist from being a dispensing pharmacist for the facility where the resident lives and (ii) specifies that a licensed nurse includes a licensed practical nurse. Provides that specified forms shall be designated (rather than developed) by the Department and may be able to be downloaded from a website designated by the Department (other than the Department's official website). Provides that the maximum possible period for informed consent shall be until a change in the prescription occurs as to the change in the type of psychotropic medication or an increase in dosage (rather than a change in dosage), unless the physician's order for which informed consent was given provides for an increase in dosage. Effective immediately.

LRB102 13807 CPF 19157 b





SB2265LRB102 13807 CPF 19157 b

1    AN ACT concerning regulation.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Nursing Home Care Act is amended by
5changing Section 2-106.1 as follows:
6    (210 ILCS 45/2-106.1)
7    Sec. 2-106.1. Drug treatment.
8    (a) A resident shall not be given unnecessary drugs. An
9unnecessary drug is any drug used in an excessive dose,
10including in duplicative therapy; for excessive duration;
11without adequate monitoring; without adequate indications for
12its use; or in the presence of adverse consequences that
13indicate the drugs should be reduced or discontinued. The
14Department shall adopt, by rule, the standards for unnecessary
15drugs contained in interpretive guidelines issued by the
16United States Department of Health and Human Services for the
17purposes of administering Titles XVIII and XIX of the Social
18Security Act.
19    (b) Except in the case of an emergency, psychotropic
20medication shall not be administered without the informed
21consent of the resident or the resident's surrogate decision
22maker. "Psychotropic medication" means medication that is used
23for or listed as used for psychotropic, antidepressant,



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1antimanic, or antianxiety behavior modification or behavior
2management purposes in the latest editions of the AMA Drug
3Evaluations or the Physician's Desk Reference. "Emergency" has
4the same meaning as in Section 1-112 of the Nursing Home Care
5Act. A facility shall (i) document the alleged emergency in
6detail, including the facts surrounding the medication's need,
7and (ii) present this documentation to the resident and the
8resident's representative. The No later than January 1, 2021,
9the Department shall adopt, by rule, a protocol specifying how
10informed consent for psychotropic medication may be obtained
11or refused. The protocol shall require, at a minimum, a
12discussion between (i) the resident or the resident's
13surrogate decision maker and (ii) the resident's physician, a
14registered pharmacist (who is not a dispensing pharmacist for
15the facility where the resident lives), or a licensed nurse,
16including, but not limited to, a licensed practical nurse,
17about the possible risks and benefits of a recommended
18medication and the use of standardized consent forms
19designated by the Department. The protocol shall include
20informing the resident, surrogate decision maker, or both of
21the existence of a copy of: the resident's care plan; the
22facility policies and procedures adopted in compliance with
23subsection (b-15) of this Section; and a notification that the
24most recent of the resident's care plans and the facility's
25policies are available to the resident or surrogate decision
26maker upon request. Each form designated developed by the



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1Department (i) shall be written in plain language, (ii) shall
2be able to be downloaded from the Department's official
3website or another website designated by the Department, (iii)
4shall include information specific to the psychotropic
5medication for which consent is being sought, and (iv) shall
6be used for every resident for whom psychotropic drugs are
7prescribed. The Department shall utilize the rules, protocols,
8and forms developed and implemented under the Specialized
9Mental Health Rehabilitation Act of 2013 in effect on the
10effective date of this amendatory Act of the 101st General
11Assembly, except to the extent that this Act requires a
12different procedure, and except that the maximum possible
13period for informed consent shall be until: (1) a change in the
14prescription occurs, either as to type of psychotropic
15medication or increase in dosage, unless the physician's order
16for which informed consent was given provides for an increase
17in dosage; or (2) a resident's care plan changes. The
18Department may further amend the rules after January 1, 2021
19pursuant to existing rulemaking authority. In addition to
20creating those forms, the Department shall approve the use of
21any other informed consent forms that meet criteria developed
22by the Department. At the discretion of the Department,
23informed consent forms may include side effects that the
24Department reasonably believes are more common, with a
25direction that more complete information can be found via a
26link on the Department's website to third-party websites with



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1more complete information, such as the United States Food and
2Drug Administration's website. The Department or a facility
3shall incur no liability for information provided on a consent
4form so long as the consent form is substantially accurate
5based upon generally accepted medical principles and if the
6form includes the website links.
7    Informed consent shall be sought from the resident. For
8the purposes of this Section, "surrogate decision maker" means
9an individual representing the resident's interests as
10permitted by this Section. Informed consent shall be sought by
11the resident's guardian of the person if one has been named by
12a court of competent jurisdiction. In the absence of a
13court-ordered guardian, informed consent shall be sought from
14a health care agent under the Illinois Power of Attorney Act
15who has authority to give consent. If neither a court-ordered
16guardian of the person nor a health care agent under the
17Illinois Power of Attorney Act is available and the attending
18physician determines that the resident lacks capacity to make
19decisions, informed consent shall be sought from the
20resident's attorney-in-fact designated under the Mental Health
21Treatment Preference Declaration Act, if applicable, or the
22resident's representative.
23    In addition to any other penalty prescribed by law, a
24facility that is found to have violated this subsection, or
25the federal certification requirement that informed consent be
26obtained before administering a psychotropic medication, shall



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1thereafter be required to obtain the signatures of 2 licensed
2health care professionals on every form purporting to give
3informed consent for the administration of a psychotropic
4medication, certifying the personal knowledge of each health
5care professional that the consent was obtained in compliance
6with the requirements of this subsection.
7    (b-5) A facility must obtain voluntary informed consent,
8in writing, from a resident or the resident's surrogate
9decision maker before administering or dispensing a
10psychotropic medication to that resident.
11    (b-10) No facility shall deny continued residency to a
12person on the basis of the person's or resident's, or the
13person's or resident's surrogate decision maker's, refusal of
14the administration of psychotropic medication, unless the
15facility can demonstrate that the resident's refusal would
16place the health and safety of the resident, the facility
17staff, other residents, or visitors at risk.
18    A facility that alleges that the resident's refusal to
19consent to the administration of psychotropic medication will
20place the health and safety of the resident, the facility
21staff, other residents, or visitors at risk must: (1) document
22the alleged risk in detail; (2) present this documentation to
23the resident or the resident's surrogate decision maker, to
24the Department, and to the Office of the State Long Term Care
25Ombudsman; and (3) inform the resident or his or her surrogate
26decision maker of his or her right to appeal to the Department.



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1The documentation of the alleged risk shall include a
2description of all nonpharmacological or alternative care
3options attempted and why they were unsuccessful.
4    (b-15) Within 100 days after the effective date of any
5rules adopted by the Department under subsection (b) of this
6Section, all facilities shall implement written policies and
7procedures for compliance with this Section. When the
8Department conducts its annual survey of a facility, the
9surveyor may review these written policies and procedures and
11        (1) give written notice to the facility that the
12    policies or procedures are sufficient to demonstrate the
13    facility's intent to comply with this Section; or
14        (2) provide written notice to the facility that the
15    proposed policies and procedures are deficient, identify
16    the areas that are deficient, and provide 30 days for the
17    facility to submit amended policies and procedures that
18    demonstrate its intent to comply with this Section.
19    A facility's failure to submit the documentation required
20under this subsection is sufficient to demonstrate its intent
21to not comply with this Section and shall be grounds for review
22by the Department.
23    All facilities must provide training and education on the
24requirements of this Section to all personnel involved in
25providing care to residents and train and educate such
26personnel on the methods and procedures to effectively



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1implement the facility's policies. Training and education
2provided under this Section must be documented in each
3personnel file.
4    (b-20) Upon the receipt of a report of any violation of
5this Section, the Department shall investigate and, upon
6finding sufficient evidence of a violation of this Section,
7may proceed with disciplinary action against the licensee of
8the facility. In any administrative disciplinary action under
9this subsection, the Department shall have the discretion to
10determine the gravity of the violation and, taking into
11account mitigating and aggravating circumstances and facts,
12may adjust the disciplinary action accordingly.
13    (b-25) A violation of informed consent that, for an
14individual resident, lasts for 7 days or more under this
15Section is, at a minimum, a Type "B" violation. A second
16violation of informed consent within a year from a previous
17violation in the same facility regardless of the duration of
18the second violation is, at a minimum, a Type "B" violation.
19    (b-30) Any violation of this Section by a facility may be
20enforced by an action brought by the Department in the name of
21the People of Illinois for injunctive relief, civil penalties,
22or both injunctive relief and civil penalties. The Department
23may initiate the action upon its own complaint or the
24complaint of any other interested party.
25    (b-35) Any resident who has been administered a
26psychotropic medication in violation of this Section may bring



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1an action for injunctive relief, civil damages, and costs and
2attorney's fees against any facility responsible for the
4    (b-40) An action under this Section must be filed within 2
5years of either the date of discovery of the violation that
6gave rise to the claim or the last date of an instance of a
7noncompliant administration of psychotropic medication to the
8resident, whichever is later.
9    (b-45) A facility subject to action under this Section
10shall be liable for damages of up to $500 for each day after
11discovery of a violation that the facility violates the
12requirements of this Section.
13    (b-55) The rights provided for in this Section are
14cumulative to existing resident rights. No part of this
15Section shall be interpreted as abridging, abrogating, or
16otherwise diminishing existing resident rights or causes of
17action at law or equity.
18    (c) The requirements of this Section are intended to
19control in a conflict with the requirements of Sections 2-102
20and 2-107.2 of the Mental Health and Developmental
21Disabilities Code with respect to the administration of
22psychotropic medication.
23(Source: P.A. 101-10, eff. 6-5-19.)
24    Section 99. Effective date. This Act takes effect upon
25becoming law.