Full Text of SB1497 103rd General Assembly
SB1497sam002 103RD GENERAL ASSEMBLY | Sen. Karina Villa Filed: 3/10/2023
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| 1 | | AMENDMENT TO SENATE BILL 1497
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1497 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Nursing Home Care Act is amended by | 5 | | changing Sections 1-112, 2-106, and 2-106.1 as follows:
| 6 | | (210 ILCS 45/1-112) (from Ch. 111 1/2, par. 4151-112)
| 7 | | Sec. 1-112.
"Emergency" means a situation, physical | 8 | | condition , or one or
more practices, methods , or operations | 9 | | which present imminent danger of death
or serious physical or | 10 | | mental harm to residents of a facility and are clinically | 11 | | documented in the resident's medical record .
| 12 | | (Source: P.A. 81-223.)
| 13 | | (210 ILCS 45/2-106) (from Ch. 111 1/2, par. 4152-106)
| 14 | | Sec. 2-106. Restraints. | 15 | | (a) For purposes of this Act, (i) a physical restraint is |
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| 1 | | any
manual method or physical or
mechanical device, material, | 2 | | or equipment attached or adjacent to a
resident's body that | 3 | | the resident cannot remove easily and
restricts
freedom of | 4 | | movement or normal access to one's
body , and . Devices used for
| 5 | | positioning, including but not limited to bed rails,
gait | 6 | | belts, and cushions, shall not be considered to be restraints | 7 | | for
purposes of this Section;
(ii) a chemical restraint
is
any | 8 | | drug used for discipline or convenience and not required to | 9 | | treat medical
symptoms. | 10 | | Devices used for
positioning, including, but not limited | 11 | | to, bed rails and
gait belts, shall not be considered to be | 12 | | physical restraints for
purposes of this Act unless the device | 13 | | is used to restrain or otherwise limit the patient's freedom | 14 | | to move. A device used for positioning must be requested by the | 15 | | resident, the resident's guardian, or the resident's | 16 | | authorized representative, or the need for that device must be | 17 | | physically demonstrated by the resident and documented in the | 18 | | resident's care plan. The physically demonstrated need of the | 19 | | resident for a device used for positioning must be revisited | 20 | | in every comprehensive assessment of the resident. | 21 | | The Department shall by rule, designate certain devices as
| 22 | | restraints,
including at least all those devices which have | 23 | | been determined
to be restraints by the United States | 24 | | Department of Health and Human Services
in
interpretive | 25 | | guidelines issued for the purposes of administering Titles | 26 | | XVIII and XIX of the Social Security Act.
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| 1 | | (b) Neither restraints nor confinements shall be employed
| 2 | | for the purpose of punishment or for the convenience of any | 3 | | facility personnel.
No restraints or confinements shall be | 4 | | employed except as ordered
by a physician who documents the | 5 | | need for such restraints or confinements
in the
resident's | 6 | | clinical record.
| 7 | | (c) A restraint may be used only with the informed consent | 8 | | of the
resident, the resident's guardian, or other authorized | 9 | | representative. A
restraint may be used only for specific | 10 | | periods, if it is the
least restrictive means necessary to | 11 | | attain and maintain the resident's highest
practicable | 12 | | physical, mental or psychosocial well-being, including brief
| 13 | | periods of time to provide necessary life-saving treatment. A | 14 | | restraint may be
used only after consultation with appropriate | 15 | | health professionals, such as
occupational or physical | 16 | | therapists, and a trial of less restrictive measures
has led | 17 | | to the determination that the use of less restrictive measures
| 18 | | would not attain or maintain the resident's highest | 19 | | practicable physical,
mental or psychosocial well-being.
| 20 | | However, if the resident needs emergency care, restraints may | 21 | | be used for brief
periods to
permit medical treatment to | 22 | | proceed unless the facility has notice that the
resident has | 23 | | previously made a valid refusal of the treatment in
question.
| 24 | | (d) A restraint may be applied only by a person trained in | 25 | | the application
of the particular type of restraint.
| 26 | | (e) Whenever a period of use of a restraint is initiated, |
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| 1 | | the resident shall
be advised of his or her right to have a | 2 | | person or organization of his or
her
choosing,
including the | 3 | | Guardianship and Advocacy Commission, notified of the use of | 4 | | the
restraint. A recipient
who is under guardianship may | 5 | | request that a person or organization of his or
her choosing be | 6 | | notified of the restraint, whether or not the guardian
| 7 | | approves the notice.
If the resident so chooses, the facility | 8 | | shall make the notification
within 24 hours, including any | 9 | | information
about
the period of time that the restraint is to | 10 | | be used.
Whenever the Guardianship and Advocacy Commission is | 11 | | notified that a resident
has been restrained, it shall contact | 12 | | the resident to determine the
circumstances of the restraint | 13 | | and whether further action is warranted.
| 14 | | (f) Whenever a restraint is used on a resident whose | 15 | | primary mode of
communication is sign language, the resident | 16 | | shall be permitted to have his or
her
hands free from restraint | 17 | | for brief periods each hour, except when this freedom
may
| 18 | | result in physical harm to the resident or others.
| 19 | | (g) The requirements of this Section are intended to | 20 | | control in any conflict
with the requirements of Sections
| 21 | | 1-126 and 2-108 of the Mental Health and Developmental | 22 | | Disabilities Code.
| 23 | | (Source: P.A. 97-135, eff. 7-14-11.)
| 24 | | (210 ILCS 45/2-106.1)
| 25 | | Sec. 2-106.1. Drug treatment.
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| 1 | | (a) A resident shall not be given unnecessary drugs. An
| 2 | | unnecessary drug is any drug used in an excessive dose, | 3 | | including in
duplicative therapy; for excessive duration; | 4 | | without adequate
monitoring; without adequate indications for | 5 | | its use; or in the
presence of adverse consequences that | 6 | | indicate the drugs should be reduced or
discontinued. The | 7 | | Department shall adopt, by rule, the standards
for unnecessary
| 8 | | drugs
contained in interpretive guidelines issued by the | 9 | | United States Department of
Health and Human Services for the | 10 | | purposes of administering Titles XVIII and XIX of
the Social | 11 | | Security Act.
| 12 | | (b) State laws, regulations, and policies related to
| 13 | | psychotropic medication are intended to ensure psychotropic | 14 | | medications are used only when the medication is appropriate | 15 | | to treat a resident's specific, diagnosed, and documented
| 16 | | condition and the medication is beneficial to the resident,
as | 17 | | demonstrated by monitoring and documentation of the resident's
| 18 | | response to the medication. | 19 | | (b-3) Except in the case of an emergency, psychotropic | 20 | | medication shall not be administered without the informed
| 21 | | consent of the resident or the resident's surrogate decision | 22 | | maker. Psychotropic medication shall only be given in both | 23 | | emergency and nonemergency situations if the diagnosis of the | 24 | | resident supports the benefit of the
medication and clinical | 25 | | documentation
in the resident's medical record supports the | 26 | | benefit of the
medication over the contraindications related |
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| 1 | | to other
prescribed medications. "Psychotropic medication"
| 2 | | means medication that
is used for or listed as used for | 3 | | psychotropic, antidepressant, antimanic, or
antianxiety | 4 | | behavior modification or behavior management purposes in the | 5 | | latest
editions of the AMA Drug Evaluations or the Physician's | 6 | | Desk Reference. "Emergency" has the same meaning as in Section | 7 | | 1-112 of the Nursing Home Care Act. A facility shall (i) | 8 | | document the alleged emergency in detail, including the facts | 9 | | surrounding the medication's need, and (ii) present this | 10 | | documentation to the resident and the resident's | 11 | | representative. The Department shall adopt, by rule, a | 12 | | protocol specifying how informed consent for psychotropic | 13 | | medication may be obtained or refused. The protocol shall | 14 | | require, at a minimum, a discussion between (i) the resident | 15 | | or the resident's surrogate decision maker and (ii) the | 16 | | resident's physician, a registered pharmacist, or a licensed | 17 | | nurse about the possible risks and benefits of a recommended | 18 | | medication and the use of standardized consent forms | 19 | | designated by the Department. The protocol shall include | 20 | | informing the resident, surrogate decision maker, or both of | 21 | | the existence of a copy of: the resident's care plan; the | 22 | | facility policies and procedures adopted in compliance with | 23 | | subsection (b-15) of this Section; and a notification that the | 24 | | most recent of the resident's care plans and the facility's | 25 | | policies are available to the resident or surrogate decision | 26 | | maker upon request. Each form designated or developed by the |
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| 1 | | Department (i) shall be written in plain language, (ii) shall | 2 | | be able to be downloaded from the Department's official | 3 | | website or another website designated by the Department, (iii) | 4 | | shall include information specific to the psychotropic | 5 | | medication for which consent is being sought, and (iv) shall | 6 | | be used for every resident for whom psychotropic drugs are | 7 | | prescribed. The Department shall utilize the rules, protocols, | 8 | | and forms developed and implemented under the Specialized | 9 | | Mental Health Rehabilitation Act of 2013 in effect on the | 10 | | effective date of this amendatory Act of the 101st General | 11 | | Assembly, except to the extent that this Act requires a | 12 | | different procedure, and except that the maximum possible | 13 | | period for informed consent shall be until: (1) a change in the | 14 | | prescription occurs, either as to type of psychotropic | 15 | | medication or an increase or decrease in dosage, dosage range, | 16 | | or titration schedule of the prescribed medication that was | 17 | | not included in the original informed consent; or (2) a | 18 | | resident's care plan changes. The Department may further amend | 19 | | the rules after January 1, 2021 pursuant to existing | 20 | | rulemaking authority. In addition to creating those forms, the | 21 | | Department shall approve the use of any other informed consent | 22 | | forms that meet criteria developed by the Department. At the | 23 | | discretion of the Department, informed consent forms may | 24 | | include side effects that the Department reasonably believes | 25 | | are more common, with a direction that more complete | 26 | | information can be found via a link on the Department's |
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| 1 | | website to third-party websites with more complete | 2 | | information, such as the United States Food and Drug | 3 | | Administration's website. The Department or a facility shall | 4 | | incur no liability for information provided on a consent form | 5 | | so long as the consent form is substantially accurate based | 6 | | upon generally accepted medical principles and if the form | 7 | | includes the website links. | 8 | | Informed consent shall be sought from the resident. For | 9 | | the purposes of this Section, "surrogate decision maker" means | 10 | | an individual representing the resident's interests as | 11 | | permitted by this Section. Informed consent shall be sought by | 12 | | the resident's guardian of the person if one has been named by | 13 | | a court of competent jurisdiction. In the absence of a | 14 | | court-ordered guardian, informed consent shall be sought from | 15 | | a health care agent under the Illinois Power of Attorney Act | 16 | | who has authority to give consent. If neither a court-ordered | 17 | | guardian of the person nor a health care agent under the | 18 | | Illinois Power of Attorney Act is available and the attending | 19 | | physician determines that the resident lacks capacity to make | 20 | | decisions, informed consent shall be sought from the | 21 | | resident's attorney-in-fact designated under the Mental Health | 22 | | Treatment Preference Declaration Act, if applicable, or the | 23 | | resident's representative. | 24 | | In addition to any other penalty prescribed by law, a | 25 | | facility that is found to have violated this subsection, or | 26 | | the federal certification requirement that informed consent be |
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| 1 | | obtained before administering a psychotropic medication, shall | 2 | | thereafter be required to obtain the signatures of 2 licensed | 3 | | health care professionals on every form purporting to give | 4 | | informed consent for the administration of a psychotropic | 5 | | medication, certifying the personal knowledge of each health | 6 | | care professional that the consent was obtained in compliance | 7 | | with the requirements of this subsection.
| 8 | | (b-5) A facility must obtain voluntary informed consent, | 9 | | in writing, from a resident or the resident's surrogate | 10 | | decision maker before administering or dispensing a | 11 | | psychotropic medication to that resident. When informed | 12 | | consent is not required for a change in dosage, the facility | 13 | | shall note in the resident's file that the resident was | 14 | | informed of the dosage change prior to the administration of | 15 | | the medication or that verbal, written, or electronic notice | 16 | | has been communicated to the resident's surrogate decision | 17 | | maker that a change in dosage has occurred. | 18 | | (b-10) No facility shall deny continued residency to a | 19 | | person on the basis of the person's or resident's, or the | 20 | | person's or resident's surrogate decision maker's, refusal of | 21 | | the administration of psychotropic medication, unless the | 22 | | facility can demonstrate that the resident's refusal would | 23 | | place the health and safety of the resident, the facility | 24 | | staff, other residents, or visitors at risk. | 25 | | A facility that alleges that the resident's refusal to | 26 | | consent to the administration of psychotropic medication will |
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| 1 | | place the health and safety of the resident, the facility | 2 | | staff, other residents, or visitors at risk must: (1) document | 3 | | the alleged risk in detail; (2) present this documentation to | 4 | | the resident or the resident's surrogate decision maker, to | 5 | | the Department, and to the Office of the State Long Term Care | 6 | | Ombudsman; and (3) inform the resident or his or her surrogate | 7 | | decision maker of his or her right to appeal to the Department. | 8 | | The documentation of the alleged risk shall include a | 9 | | description of all nonpharmacological or alternative care | 10 | | options attempted and why they were unsuccessful. | 11 | | (b-15) Within 100 days after the effective date of any | 12 | | rules adopted by the Department under subsection (b-3) (b) of | 13 | | this Section, all facilities shall implement written policies | 14 | | and procedures for compliance with this Section. When the | 15 | | Department conducts its annual survey of a facility, the | 16 | | surveyor may review these written policies and procedures and | 17 | | either: | 18 | | (1) give written notice to the facility that the | 19 | | policies or procedures are sufficient to demonstrate the | 20 | | facility's intent to comply with this Section; or | 21 | | (2) provide written notice to the facility that the | 22 | | proposed policies and procedures are deficient, identify | 23 | | the areas that are deficient, and provide 30 days for the | 24 | | facility to submit amended policies and procedures that | 25 | | demonstrate its intent to comply with this Section. | 26 | | A facility's failure to submit the documentation required |
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| 1 | | under this subsection is sufficient to demonstrate its intent | 2 | | to not comply with this Section and shall be grounds for review | 3 | | by the Department. | 4 | | All facilities must provide training and education on the | 5 | | requirements of this Section to all personnel involved in | 6 | | providing care to residents and train and educate such | 7 | | personnel on the methods and procedures to effectively | 8 | | implement the facility's policies. Training and education | 9 | | provided under this Section must be documented in each | 10 | | personnel file. | 11 | | (b-20) Upon the receipt of a report of any violation of | 12 | | this Section, the Department shall investigate and, upon | 13 | | finding sufficient evidence of a violation of this Section, | 14 | | may proceed with disciplinary action against the licensee of | 15 | | the facility. In any administrative disciplinary action under | 16 | | this subsection, the Department shall have the discretion to | 17 | | determine the gravity of the violation and, taking into | 18 | | account mitigating and aggravating circumstances and facts, | 19 | | may adjust the disciplinary action accordingly. | 20 | | (b-25) A violation of informed consent that, for an | 21 | | individual resident, lasts for 7 days or more under this | 22 | | Section is, at a minimum, a Type "B" violation. A second | 23 | | violation of informed consent within a year from a previous | 24 | | violation in the same facility regardless of the duration of | 25 | | the second violation is, at a minimum, a Type "B" violation. | 26 | | (b-30) Any violation of this Section by a facility may be |
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| 1 | | enforced by an action brought by the Department in the name of | 2 | | the People of Illinois for injunctive relief, civil penalties, | 3 | | or both injunctive relief and civil penalties. The Department | 4 | | may initiate the action upon its own complaint or the | 5 | | complaint of any other interested party. | 6 | | (b-35) Any resident who has been administered a | 7 | | psychotropic medication in violation of this Section may bring | 8 | | an action for injunctive relief, civil damages, and costs and | 9 | | attorney's fees against any facility responsible for the | 10 | | violation. | 11 | | (b-40) An action under this Section must be filed within 2 | 12 | | years of either the date of discovery of the violation that | 13 | | gave rise to the claim or the last date of an instance of a | 14 | | noncompliant administration of psychotropic medication to the | 15 | | resident, whichever is later. | 16 | | (b-45) A facility subject to action under this Section | 17 | | shall be liable for damages of up to $500 for each day after | 18 | | discovery of a violation that the facility violates the | 19 | | requirements of this Section. | 20 | | (b-55) The rights provided for in this Section are | 21 | | cumulative to existing resident rights. No part of this | 22 | | Section shall be interpreted as abridging, abrogating, or | 23 | | otherwise diminishing existing resident rights or causes of | 24 | | action at law or equity. | 25 | | (c) The requirements of
this Section are intended to | 26 | | control in a conflict
with the requirements of Sections 2-102 |
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| 1 | | and 2-107.2
of the Mental Health and Developmental | 2 | | Disabilities Code with respect to the
administration of | 3 | | psychotropic medication.
| 4 | | (d) In this Section only, "licensed nurse" means an | 5 | | advanced practice registered nurse, a registered nurse, or a | 6 | | licensed practical nurse. | 7 | | (Source: P.A. 101-10, eff. 6-5-19; 102-646, eff. 8-27-21.)".
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