Full Text of SB3174 93rd General Assembly
SB3174enr 93RD GENERAL ASSEMBLY
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| AN ACT concerning civil liabilities.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Mental Health and Developmental | 5 |
| Disabilities Confidentiality Act is amended by changing | 6 |
| Section 10 as follows:
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| (740 ILCS 110/10) (from Ch. 91 1/2, par. 810)
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| 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.
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| (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 | 17 |
| his services received for such condition as an
element of | 18 |
| his claim or defense, if and only to the extent the court | 19 |
| in
which the proceedings have been brought, or, in the case | 20 |
| of an administrative
proceeding, the court to which an | 21 |
| appeal or other action for review of an
administrative | 22 |
| determination may be taken, finds, after in camera
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| examination of testimony or other evidence, that it is | 24 |
| relevant, probative,
not unduly prejudicial or | 25 |
| inflammatory, and otherwise clearly
admissible; that other | 26 |
| satisfactory evidence is demonstrably unsatisfactory
as | 27 |
| evidence of the facts sought to be established by such | 28 |
| evidence; and
that disclosure is more important to the | 29 |
| interests of substantial justice
than protection from | 30 |
| injury to the therapist-recipient relationship or to
the | 31 |
| recipient or other whom disclosure is likely to harm. | 32 |
| Except in a criminal
proceeding in which the recipient, who |
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| is accused in that proceeding, raises
the defense of | 2 |
| insanity, no record or communication between a therapist
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| and a recipient shall be deemed relevant for purposes of | 4 |
| this subsection,
except the fact of treatment, the cost of | 5 |
| services and the ultimate
diagnosis unless the party | 6 |
| seeking disclosure of the communication clearly
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| establishes in the trial court a compelling need for its | 8 |
| production.
However, for purposes of this Act, in any | 9 |
| action brought or defended under
the Illinois Marriage and | 10 |
| Dissolution of Marriage Act, or in any action in
which pain | 11 |
| and suffering is an element of the claim, mental condition | 12 |
| shall
not be deemed to be introduced merely by making such | 13 |
| claim and shall be
deemed to be introduced only if the | 14 |
| recipient or a witness on his behalf
first testifies | 15 |
| concerning the record or communication.
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| (2) Records or communications may be disclosed in a | 17 |
| civil proceeding after
the recipient's death when the | 18 |
| recipient's physical or mental condition
has been | 19 |
| introduced as an element of a claim or defense by any party | 20 |
| claiming
or defending through or as a beneficiary of the | 21 |
| recipient, provided the
court finds, after in camera | 22 |
| examination of the evidence, that it is relevant,
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| probative, and otherwise clearly admissible; that other | 24 |
| satisfactory evidence
is not available regarding the facts | 25 |
| sought to be established by such evidence;
and that | 26 |
| disclosure is more important to the interests of | 27 |
| substantial justice
than protection from any injury which | 28 |
| disclosure is likely to cause.
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| (3) In the event of a claim made or an action filed by | 30 |
| a recipient, or,
following the recipient's death, by any | 31 |
| party claiming as a beneficiary
of the recipient for injury | 32 |
| caused in the course of providing services to such | 33 |
| recipient, the therapist and other persons whose actions
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| are alleged
to have been the cause of injury may disclose | 35 |
| pertinent records and
communications to an attorney or | 36 |
| attorneys engaged to render advice about
and to provide |
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| 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
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| communication in any administrative, judicial
or discovery | 5 |
| proceeding for the purpose of preparing and presenting a
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| defense against such claim or action.
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| (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
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| 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.
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| (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.
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| (6) Records and communications may be disclosed when | 27 |
| such are made during
treatment which the recipient is | 28 |
| ordered to undergo to render him fit to
stand trial on a | 29 |
| criminal charge, provided that the disclosure is made only
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| with respect to the issue of fitness to stand trial.
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| (7) Records and communications of the recipient may be | 32 |
| disclosed in any
civil or administrative proceeding | 33 |
| involving the validity of or benefits
under a life, | 34 |
| accident, health or disability insurance policy or | 35 |
| certificate,
or Health Care Service Plan Contract, | 36 |
| insuring the recipient, but only if
and to the extent that |
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| the recipient's mental condition, or treatment or
services | 2 |
| in connection therewith, is a material element of any claim | 3 |
| or
defense of any party, provided that information sought | 4 |
| or disclosed shall
not be redisclosed except in connection | 5 |
| with the proceeding in which
disclosure is made.
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| (8) Records or communications may be disclosed when | 7 |
| such are relevant
to a matter in issue in any action | 8 |
| brought under this Act and proceedings
preliminary | 9 |
| thereto, provided that any information so disclosed shall | 10 |
| not
be utilized for any other purpose nor be redisclosed | 11 |
| except in connection
with such action or preliminary | 12 |
| proceedings.
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| (9) Records and communications of the recipient may be | 14 |
| disclosed in
investigations of and trials for homicide when | 15 |
| the disclosure relates directly
to the fact or immediate | 16 |
| circumstances of the homicide.
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| (10) Records and communications of a deceased | 18 |
| recipient may be
disclosed to a coroner conducting a | 19 |
| preliminary investigation into the
recipient's death under | 20 |
| Section 3-3013 of the Counties Code. However,
records and | 21 |
| communications of the deceased recipient disclosed in an
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| investigation shall be limited solely to the deceased | 23 |
| recipient's records
and communications relating to the | 24 |
| factual circumstances of the incident
being investigated | 25 |
| in a mental health facility.
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| (11) Records and communications of a recipient shall be | 27 |
| disclosed in a
proceeding
where a petition or motion is | 28 |
| filed under the Juvenile Court Act of 1987 and
the | 29 |
| recipient is
named as a parent, guardian, or legal | 30 |
| custodian of a minor who is the subject
of a petition for | 31 |
| wardship as
described in Section
2-3 of that Act or a minor | 32 |
| who is the subject of a petition for wardship as
described | 33 |
| in Section 2-4 of that
Act alleging the
minor is abused, | 34 |
| neglected, or dependent or the recipient is named as a | 35 |
| parent
of a child
who is the subject of
a petition, | 36 |
| supplemental petition, or motion to appoint a guardian with |
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| the
power to consent to
adoption under Section 2-29 of the | 2 |
| Juvenile Court Act
of 1987.
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| (12) Records and communications of a recipient may be
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| disclosed when disclosure is necessary to collect sums or | 5 |
| receive
third party payment representing charges for | 6 |
| mental health or
developmental disabilities services | 7 |
| provided by a therapist or
agency to a recipient; however, | 8 |
| disclosure shall be limited to
information needed to pursue | 9 |
| collection, and the information so
disclosed may not be | 10 |
| used for any other purposes nor may it be
redisclosed | 11 |
| except in connection with collection activities.
Whenever | 12 |
| records are disclosed pursuant to this subdivision (12), | 13 |
| the
recipient of the records shall be advised in writing | 14 |
| that any person who
discloses mental health records and | 15 |
| communications in violation of this Act may
be subject to | 16 |
| civil liability pursuant to Section 15 of this Act or to | 17 |
| criminal
penalties pursuant to Section 16 of this Act or | 18 |
| both.
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| (b) Before a disclosure is made under subsection (a), any | 20 |
| party to the
proceeding or any other interested person may | 21 |
| request an in camera review
of the record or communications to | 22 |
| be disclosed. The court or agency
conducting the proceeding may | 23 |
| hold an in camera review on its own motion.
When, contrary to | 24 |
| the express wish of the recipient, the therapist asserts
a | 25 |
| privilege on behalf and in the interest of a recipient, the | 26 |
| court may
require that the therapist, in an in camera hearing, | 27 |
| establish that
disclosure is not in the best interest of the | 28 |
| recipient. The court or
agency may prevent disclosure or limit | 29 |
| disclosure to the extent that other
admissible evidence is | 30 |
| sufficient to establish the facts in issue. The
court or agency | 31 |
| may enter such orders as may be necessary in order to
protect | 32 |
| the confidentiality, privacy, and safety of the recipient or of
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| other persons. Any order to disclose or to not disclose shall | 34 |
| be
considered a final order for purposes of appeal and shall be | 35 |
| subject to
interlocutory appeal.
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| (c) A recipient's records and communications may be |
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| disclosed to a
duly authorized committee, commission or | 2 |
| subcommittee of the General
Assembly which possesses subpoena | 3 |
| and hearing powers, upon a written
request approved by a | 4 |
| majority vote of the committee, commission or
subcommittee | 5 |
| members. The committee, commission or subcommittee may
request | 6 |
| records only for the purposes of investigating or studying
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| possible violations of recipient rights. The request shall | 8 |
| state the
purpose for which disclosure is sought.
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| The facility shall notify the recipient, or his guardian, | 10 |
| and therapist in
writing of any disclosure request under this | 11 |
| subsection within 5 business
days after such request. Such | 12 |
| notification shall also inform the
recipient, or guardian, and | 13 |
| therapist of their right to object to the
disclosure within 10 | 14 |
| business days after receipt of the notification and
shall | 15 |
| include the name, address and telephone number of the
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| committee, commission or subcommittee member or staff person | 17 |
| with whom an
objection shall be filed. If no objection has been | 18 |
| filed within 15
business days after the request for disclosure, | 19 |
| the facility shall disclose
the records and communications to | 20 |
| the committee, commission or
subcommittee. If an objection has | 21 |
| been filed within 15 business days after
the request for | 22 |
| disclosure, the facility shall disclose the records and
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| communications only after the committee, commission or | 24 |
| subcommittee has
permitted the recipient, guardian or | 25 |
| therapist to present his objection in
person before it and has | 26 |
| renewed its request for disclosure by a majority
vote of its | 27 |
| members.
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| Disclosure under this subsection shall not occur until all | 29 |
| personally
identifiable data of the recipient and provider are | 30 |
| removed from the
records and communications. Disclosure under | 31 |
| this subsection shall not
occur in any public proceeding.
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| (d) No party to any proceeding described under paragraphs | 33 |
| (1), (2),
(3), (4), (7), or (8) of subsection (a) of this | 34 |
| Section, nor his or
her attorney, shall serve a subpoena | 35 |
| seeking to obtain access to records or
communications under | 36 |
| this Act unless the subpoena is accompanied by a
written order |
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| issued by a judge, authorizing the disclosure of the records
or | 2 |
| the issuance of the subpoena. No person shall comply with a | 3 |
| subpoena for
records or communications under this Act, unless | 4 |
| the subpoena is
accompanied by a written order authorizing the | 5 |
| issuance of the subpoena or
the disclosure of the records.
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| (e) When a person has been transported by a peace officer | 7 |
| to a mental
health facility, then upon the request of a peace | 8 |
| officer, if the person is
allowed to leave the mental health | 9 |
| facility within 48 hours of arrival,
excluding Saturdays, | 10 |
| Sundays, and holidays, the facility director shall notify
the | 11 |
| local law enforcement authority prior to the release of the | 12 |
| person. The
local law enforcement authority may re-disclose the | 13 |
| information as necessary to
alert the appropriate enforcement | 14 |
| or prosecuting authority.
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| (f) A recipient's records and communications shall be | 16 |
| disclosed to the
Inspector General of the Department of Human | 17 |
| Services within 10 business days
of a request by the Inspector | 18 |
| General
(i) in the course of an investigation authorized by the | 19 |
| Abused and Neglected Long
Term Care Facility Residents | 20 |
| Reporting Act and applicable rule or (ii) during the course of | 21 |
| an assessment authorized by the Abuse of Adults with | 22 |
| Disabilities Intervention Act and applicable rule . The request
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| shall be
in writing and signed by the Inspector General or his | 24 |
| or her designee. The
request shall state the purpose for which | 25 |
| disclosure is sought. Any person who
knowingly and willfully | 26 |
| refuses to comply with such a request is guilty of a
Class A | 27 |
| misdemeanor.
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| (Source: P.A. 91-726, eff. 6-2-00; 92-358, eff. 8-15-01; | 29 |
| 92-708, eff.
7-19-02.)
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| Section 99. Effective date. This Act takes effect upon | 31 |
| becoming law.
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