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


Sen. Dave Syverson

Filed: 4/15/2021





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2    AMENDMENT NO. ______. Amend Senate Bill 2265 by replacing
3everything after the enacting clause with the following:
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



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1purposes of administering Titles XVIII and XIX of the Social
2Security Act.
3    (b) Except in the case of an emergency, psychotropic
4medication shall not be administered without the informed
5consent of the resident or the resident's surrogate decision
6maker. "Psychotropic medication" means medication that is used
7for or listed as used for psychotropic, antidepressant,
8antimanic, or antianxiety behavior modification or behavior
9management purposes in the latest editions of the AMA Drug
10Evaluations or the Physician's Desk Reference. "Emergency" has
11the same meaning as in Section 1-112 of the Nursing Home Care
12Act. A facility shall (i) document the alleged emergency in
13detail, including the facts surrounding the medication's need,
14and (ii) present this documentation to the resident and the
15resident's representative. The No later than January 1, 2021,
16the Department shall adopt, by rule, a protocol specifying how
17informed consent for psychotropic medication may be obtained
18or refused. The protocol shall require, at a minimum, a
19discussion between (i) the resident or the resident's
20surrogate decision maker and (ii) the resident's physician, a
21registered pharmacist (who is not a dispensing pharmacist for
22the facility where the resident lives), or a licensed nurse,
23including, but not limited to, a licensed practical nurse,
24about the possible risks and benefits of a recommended
25medication and the use of standardized consent forms
26designated by the Department. The protocol shall include



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1informing the resident, surrogate decision maker, or both of
2the existence of a copy of: the resident's care plan; the
3facility policies and procedures adopted in compliance with
4subsection (b-15) of this Section; and a notification that the
5most recent of the resident's care plans and the facility's
6policies are available to the resident or surrogate decision
7maker upon request. Each form designated or developed by the
8Department (i) shall be written in plain language, (ii) shall
9be able to be downloaded from the Department's official
10website or another website designated by the Department, (iii)
11shall include information specific to the psychotropic
12medication for which consent is being sought, and (iv) shall
13be used for every resident for whom psychotropic drugs are
14prescribed. The Department shall utilize the rules, protocols,
15and forms developed and implemented under the Specialized
16Mental Health Rehabilitation Act of 2013 in effect on the
17effective date of this amendatory Act of the 101st General
18Assembly, except to the extent that this Act requires a
19different procedure, and except that the maximum possible
20period for informed consent shall be until: (1) a change in the
21prescription occurs, either as to type of psychotropic
22medication or an increase or decrease in dosage, dosage range,
23or titration schedule of the prescribed medication that was
24not included in the original informed consent; or (2) a
25resident's care plan changes. The Department may further amend
26the rules after January 1, 2021 pursuant to existing



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1rulemaking authority. In addition to creating those forms, the
2Department shall approve the use of any other informed consent
3forms that meet criteria developed by the Department. At the
4discretion of the Department, informed consent forms may
5include side effects that the Department reasonably believes
6are more common, with a direction that more complete
7information can be found via a link on the Department's
8website to third-party websites with more complete
9information, such as the United States Food and Drug
10Administration's website. The Department or a facility shall
11incur no liability for information provided on a consent form
12so long as the consent form is substantially accurate based
13upon generally accepted medical principles and if the form
14includes the website links.
15    Informed consent shall be sought from the resident. For
16the purposes of this Section, "surrogate decision maker" means
17an individual representing the resident's interests as
18permitted by this Section. Informed consent shall be sought by
19the resident's guardian of the person if one has been named by
20a court of competent jurisdiction. In the absence of a
21court-ordered guardian, informed consent shall be sought from
22a health care agent under the Illinois Power of Attorney Act
23who has authority to give consent. If neither a court-ordered
24guardian of the person nor a health care agent under the
25Illinois Power of Attorney Act is available and the attending
26physician determines that the resident lacks capacity to make



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1decisions, informed consent shall be sought from the
2resident's attorney-in-fact designated under the Mental Health
3Treatment Preference Declaration Act, if applicable, or the
4resident's representative.
5    In addition to any other penalty prescribed by law, a
6facility that is found to have violated this subsection, or
7the federal certification requirement that informed consent be
8obtained before administering a psychotropic medication, shall
9thereafter be required to obtain the signatures of 2 licensed
10health care professionals on every form purporting to give
11informed consent for the administration of a psychotropic
12medication, certifying the personal knowledge of each health
13care professional that the consent was obtained in compliance
14with the requirements of this subsection.
15    (b-5) A facility must obtain voluntary informed consent,
16in writing, from a resident or the resident's surrogate
17decision maker before administering or dispensing a
18psychotropic medication to that resident. When informed
19consent is not required for a change in dosage, the facility
20shall note in the resident's file that the resident was
21informed of the dosage change prior to the administration of
22the medication or that verbal, written, or electronic notice
23has been communicated to the resident's surrogate decision
24maker that a change in dosage has occurred.
25    (b-10) No facility shall deny continued residency to a
26person on the basis of the person's or resident's, or the



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1person's or resident's surrogate decision maker's, refusal of
2the administration of psychotropic medication, unless the
3facility can demonstrate that the resident's refusal would
4place the health and safety of the resident, the facility
5staff, other residents, or visitors at risk.
6    A facility that alleges that the resident's refusal to
7consent to the administration of psychotropic medication will
8place the health and safety of the resident, the facility
9staff, other residents, or visitors at risk must: (1) document
10the alleged risk in detail; (2) present this documentation to
11the resident or the resident's surrogate decision maker, to
12the Department, and to the Office of the State Long Term Care
13Ombudsman; and (3) inform the resident or his or her surrogate
14decision maker of his or her right to appeal to the Department.
15The documentation of the alleged risk shall include a
16description of all nonpharmacological or alternative care
17options attempted and why they were unsuccessful.
18    (b-15) Within 100 days after the effective date of any
19rules adopted by the Department under subsection (b) of this
20Section, all facilities shall implement written policies and
21procedures for compliance with this Section. When the
22Department conducts its annual survey of a facility, the
23surveyor may review these written policies and procedures and
25        (1) give written notice to the facility that the
26    policies or procedures are sufficient to demonstrate the



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1    facility's intent to comply with this Section; or
2        (2) provide written notice to the facility that the
3    proposed policies and procedures are deficient, identify
4    the areas that are deficient, and provide 30 days for the
5    facility to submit amended policies and procedures that
6    demonstrate its intent to comply with this Section.
7    A facility's failure to submit the documentation required
8under this subsection is sufficient to demonstrate its intent
9to not comply with this Section and shall be grounds for review
10by the Department.
11    All facilities must provide training and education on the
12requirements of this Section to all personnel involved in
13providing care to residents and train and educate such
14personnel on the methods and procedures to effectively
15implement the facility's policies. Training and education
16provided under this Section must be documented in each
17personnel file.
18    (b-20) Upon the receipt of a report of any violation of
19this Section, the Department shall investigate and, upon
20finding sufficient evidence of a violation of this Section,
21may proceed with disciplinary action against the licensee of
22the facility. In any administrative disciplinary action under
23this subsection, the Department shall have the discretion to
24determine the gravity of the violation and, taking into
25account mitigating and aggravating circumstances and facts,
26may adjust the disciplinary action accordingly.



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1    (b-25) A violation of informed consent that, for an
2individual resident, lasts for 7 days or more under this
3Section is, at a minimum, a Type "B" violation. A second
4violation of informed consent within a year from a previous
5violation in the same facility regardless of the duration of
6the second violation is, at a minimum, a Type "B" violation.
7    (b-30) Any violation of this Section by a facility may be
8enforced by an action brought by the Department in the name of
9the People of Illinois for injunctive relief, civil penalties,
10or both injunctive relief and civil penalties. The Department
11may initiate the action upon its own complaint or the
12complaint of any other interested party.
13    (b-35) Any resident who has been administered a
14psychotropic medication in violation of this Section may bring
15an action for injunctive relief, civil damages, and costs and
16attorney's fees against any facility responsible for the
18    (b-40) An action under this Section must be filed within 2
19years of either the date of discovery of the violation that
20gave rise to the claim or the last date of an instance of a
21noncompliant administration of psychotropic medication to the
22resident, whichever is later.
23    (b-45) A facility subject to action under this Section
24shall be liable for damages of up to $500 for each day after
25discovery of a violation that the facility violates the
26requirements of this Section.



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1    (b-55) The rights provided for in this Section are
2cumulative to existing resident rights. No part of this
3Section shall be interpreted as abridging, abrogating, or
4otherwise diminishing existing resident rights or causes of
5action at law or equity.
6    (c) The requirements of this Section are intended to
7control in a conflict with the requirements of Sections 2-102
8and 2-107.2 of the Mental Health and Developmental
9Disabilities Code with respect to the administration of
10psychotropic medication.
11(Source: P.A. 101-10, eff. 6-5-19.)
12    Section 99. Effective date. This Act takes effect upon
13becoming law.".