Full Text of HB3843 96th General Assembly
HB3843enr 96TH GENERAL ASSEMBLY
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| AN ACT concerning civil law.
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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 |
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| relevant, probative,
not unduly prejudicial or | 2 |
| inflammatory, and otherwise clearly
admissible; that other | 3 |
| satisfactory evidence is demonstrably unsatisfactory
as | 4 |
| evidence of the facts sought to be established by such | 5 |
| evidence; and
that disclosure is more important to the | 6 |
| interests of substantial justice
than protection from | 7 |
| injury to the therapist-recipient relationship or to
the | 8 |
| recipient or other whom disclosure is likely to harm. | 9 |
| Except in a criminal
proceeding in which the recipient, who | 10 |
| is accused in that proceeding, raises
the defense of | 11 |
| insanity, no record or communication between a therapist
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| and a recipient shall be deemed relevant for purposes of | 13 |
| this subsection,
except the fact of treatment, the cost of | 14 |
| services and the ultimate
diagnosis unless the party | 15 |
| seeking disclosure of the communication clearly
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| establishes in the trial court a compelling need for its | 17 |
| production.
However, for purposes of this Act, in any | 18 |
| action brought or defended under
the Illinois Marriage and | 19 |
| Dissolution of Marriage Act, or in any action in
which pain | 20 |
| and suffering is an element of the claim, mental condition | 21 |
| shall
not be deemed to be introduced merely by making such | 22 |
| claim and shall be
deemed to be introduced only if the | 23 |
| recipient or a witness on his behalf
first testifies | 24 |
| concerning the record or communication.
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| (2) Records or communications may be disclosed in a | 26 |
| civil proceeding after
the recipient's death when the |
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| recipient's physical or mental condition
has been | 2 |
| introduced as an element of a claim or defense by any party | 3 |
| claiming
or defending through or as a beneficiary of the | 4 |
| recipient, provided the
court finds, after in camera | 5 |
| examination of the evidence, that it is relevant,
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| probative, and otherwise clearly admissible; that other | 7 |
| satisfactory evidence
is not available regarding the facts | 8 |
| sought to be established by such evidence;
and that | 9 |
| disclosure is more important to the interests of | 10 |
| substantial justice
than protection from any injury which | 11 |
| disclosure is likely to cause.
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| (3) In the event of a claim made or an action filed by | 13 |
| a recipient, or,
following the recipient's death, by any | 14 |
| party claiming as a beneficiary
of the recipient for injury | 15 |
| caused in the course of providing services to such | 16 |
| recipient, the therapist and other persons whose actions
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| are alleged
to have been the cause of injury may disclose | 18 |
| pertinent records and
communications to an attorney or | 19 |
| attorneys engaged to render advice about
and to provide | 20 |
| representation in connection with such matter and to | 21 |
| persons
working under the supervision of such attorney or | 22 |
| attorneys, and may
testify as to such records or
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| communication in any administrative, judicial
or discovery | 24 |
| 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 |
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| therapist in the course
of examination ordered by a court | 2 |
| for good cause shown may, if otherwise
relevant and | 3 |
| admissible, be disclosed in a civil, criminal,
or | 4 |
| administrative proceeding in which the recipient is a party | 5 |
| or in
appropriate pretrial proceedings, provided such | 6 |
| court has found that the
recipient has been as adequately | 7 |
| and as effectively as possible informed
before submitting | 8 |
| to such examination that such records and communications
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| would not be considered confidential or privileged. Such | 10 |
| records and
communications shall be admissible only as to | 11 |
| issues involving the
recipient's physical or mental | 12 |
| condition and only to the extent that these
are germane to | 13 |
| such proceedings.
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| (5) Records and communications may be disclosed in a | 15 |
| proceeding under
the Probate Act of 1975, to determine a | 16 |
| recipient's competency or need for
guardianship, provided | 17 |
| that the disclosure is made only with respect to that | 18 |
| issue.
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| (6) Records and communications may be disclosed when | 20 |
| such are made during
treatment which the recipient is | 21 |
| ordered to undergo to render him fit to
stand trial on a | 22 |
| 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 | 25 |
| disclosed in any
civil or administrative proceeding | 26 |
| involving the validity of or benefits
under a life, |
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| accident, health or disability insurance policy or | 2 |
| certificate,
or Health Care Service Plan Contract, | 3 |
| insuring the recipient, but only if
and to the extent that | 4 |
| the recipient's mental condition, or treatment or
services | 5 |
| in connection therewith, is a material element of any claim | 6 |
| or
defense of any party, provided that information sought | 7 |
| or disclosed shall
not be redisclosed except in connection | 8 |
| with the proceeding in which
disclosure is made.
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| (8) Records or communications may be disclosed when | 10 |
| such are relevant
to a matter in issue in any action | 11 |
| brought under this Act and proceedings
preliminary | 12 |
| thereto, provided that any information so disclosed shall | 13 |
| not
be utilized for any other purpose nor be redisclosed | 14 |
| except in connection
with such action or preliminary | 15 |
| proceedings.
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| (9) Records and communications of the recipient may be | 17 |
| disclosed in
investigations of and trials for homicide when | 18 |
| the disclosure relates directly
to the fact or immediate | 19 |
| circumstances of the homicide.
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| (10) Records and communications of a deceased | 21 |
| recipient may be
disclosed to a coroner conducting a | 22 |
| preliminary investigation into the
recipient's death under | 23 |
| Section 3-3013 of the Counties Code. However,
records and | 24 |
| communications of the deceased recipient disclosed in an
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| investigation shall be limited solely to the deceased | 26 |
| recipient's records
and communications relating to the |
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| factual circumstances of the incident
being investigated | 2 |
| in a mental health facility.
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| (11) Records and communications of a recipient shall be | 4 |
| disclosed in a
proceeding
where a petition or motion is | 5 |
| filed under the Juvenile Court Act of 1987 and
the | 6 |
| recipient is
named as a parent, guardian, or legal | 7 |
| custodian of a minor who is the subject
of a petition for | 8 |
| wardship as
described in Section
2-3 of that Act or a minor | 9 |
| who is the subject of a petition for wardship as
described | 10 |
| in Section 2-4 of that
Act alleging the
minor is abused, | 11 |
| neglected, or dependent or the recipient is named as a | 12 |
| parent
of a child
who is the subject of
a petition, | 13 |
| supplemental petition, or motion to appoint a guardian with | 14 |
| the
power to consent to
adoption under Section 2-29 of the | 15 |
| 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 | 18 |
| receive
third party payment representing charges for | 19 |
| mental health or
developmental disabilities services | 20 |
| provided by a therapist or
agency to a recipient; however, | 21 |
| disclosure shall be limited to
information needed to pursue | 22 |
| collection, and the information so
disclosed may not be | 23 |
| used for any other purposes nor may it be
redisclosed | 24 |
| except in connection with collection activities.
Whenever | 25 |
| records are disclosed pursuant to this subdivision (12), | 26 |
| the
recipient of the records shall be advised in writing |
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| that any person who
discloses mental health records and | 2 |
| communications in violation of this Act may
be subject to | 3 |
| civil liability pursuant to Section 15 of this Act or to | 4 |
| criminal
penalties pursuant to Section 16 of this Act or | 5 |
| both.
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| (b) Before a disclosure is made under subsection (a), any | 7 |
| party to the
proceeding or any other interested person may | 8 |
| request an in camera review
of the record or communications to | 9 |
| be disclosed. The court or agency
conducting the proceeding may | 10 |
| hold an in camera review on its own motion.
When, contrary to | 11 |
| the express wish of the recipient, the therapist asserts
a | 12 |
| privilege on behalf and in the interest of a recipient, the | 13 |
| court may
require that the therapist, in an in camera hearing, | 14 |
| establish that
disclosure is not in the best interest of the | 15 |
| recipient. The court or
agency may prevent disclosure or limit | 16 |
| disclosure to the extent that other
admissible evidence is | 17 |
| sufficient to establish the facts in issue. The
court or agency | 18 |
| may enter such orders as may be necessary in order to
protect | 19 |
| 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 | 21 |
| be
considered a final order for purposes of appeal and shall be | 22 |
| subject to
interlocutory appeal.
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| (c) A recipient's records and communications may be | 24 |
| disclosed to a
duly authorized committee, commission or | 25 |
| subcommittee of the General
Assembly which possesses subpoena | 26 |
| and hearing powers, upon a written
request approved by a |
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| majority vote of the committee, commission or
subcommittee | 2 |
| members. The committee, commission or subcommittee may
request | 3 |
| records only for the purposes of investigating or studying
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| possible violations of recipient rights. The request shall | 5 |
| state the
purpose for which disclosure is sought.
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| The facility shall notify the recipient, or his guardian, | 7 |
| and therapist in
writing of any disclosure request under this | 8 |
| subsection within 5 business
days after such request. Such | 9 |
| notification shall also inform the
recipient, or guardian, and | 10 |
| therapist of their right to object to the
disclosure within 10 | 11 |
| business days after receipt of the notification and
shall | 12 |
| include the name, address and telephone number of the
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| committee, commission or subcommittee member or staff person | 14 |
| with whom an
objection shall be filed. If no objection has been | 15 |
| filed within 15
business days after the request for disclosure, | 16 |
| the facility shall disclose
the records and communications to | 17 |
| the committee, commission or
subcommittee. If an objection has | 18 |
| been filed within 15 business days after
the request for | 19 |
| disclosure, the facility shall disclose the records and
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| communications only after the committee, commission or | 21 |
| subcommittee has
permitted the recipient, guardian or | 22 |
| therapist to present his objection in
person before it and has | 23 |
| renewed its request for disclosure by a majority
vote of its | 24 |
| members.
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| Disclosure under this subsection shall not occur until all | 26 |
| personally
identifiable data of the recipient and provider are |
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| removed from the
records and communications. Disclosure under | 2 |
| this subsection shall not
occur in any public proceeding.
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| (d) No party to any proceeding described under paragraphs | 4 |
| (1), (2),
(3), (4), (7), or (8) of subsection (a) of this | 5 |
| Section, nor his or
her attorney, shall serve a subpoena | 6 |
| seeking to obtain access to records or
communications under | 7 |
| this Act unless the subpoena is accompanied by a
written order | 8 |
| issued by a judge, authorizing the disclosure of the records
or | 9 |
| the issuance of the subpoena. No person shall comply with a | 10 |
| subpoena for
records or communications under this Act, unless | 11 |
| the subpoena is
accompanied by a written order authorizing the | 12 |
| 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 | 14 |
| to a mental
health facility, then upon the request of a peace | 15 |
| officer, if the person is
allowed to leave the mental health | 16 |
| facility within 48 hours of arrival,
excluding Saturdays, | 17 |
| Sundays, and holidays, the facility director shall notify
the | 18 |
| local law enforcement authority prior to the release of the | 19 |
| person. The
local law enforcement authority may re-disclose the | 20 |
| information as necessary to
alert the appropriate enforcement | 21 |
| or prosecuting authority.
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| (f) A recipient's records and communications shall be | 23 |
| disclosed to the
Inspector General of the Department of Human | 24 |
| Services within 10 business days
of a request by the Inspector | 25 |
| General
(i) in the course of an investigation authorized by the | 26 |
| Department of Human Services Act Abused and Neglected Long
Term |
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| Care Facility Residents Reporting Act and applicable rule or | 2 |
| (ii) during the course of an assessment authorized by the Abuse | 3 |
| of Adults with Disabilities Intervention Act and applicable | 4 |
| rule. The request
shall be
in writing and signed by the | 5 |
| Inspector General or his or her designee. The
request shall | 6 |
| state the purpose for which disclosure is sought. Any person | 7 |
| who
knowingly and willfully refuses to comply with such a | 8 |
| request is guilty of a
Class A misdemeanor. A recipient's | 9 |
| records and communications shall also be disclosed pursuant to | 10 |
| subsection (g-5) of Section 1-17 of the Department of Human | 11 |
| Services Act in testimony at health care worker registry | 12 |
| hearings or preliminary proceedings when such are relevant to | 13 |
| the matter in issue, provided that any information so disclosed | 14 |
| shall not be utilized for any other purpose nor be redisclosed | 15 |
| except in connection with such action or preliminary | 16 |
| proceedings.
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| (Source: P.A. 92-358, eff. 8-15-01; 92-708, eff. 7-19-02; | 18 |
| 93-751, eff. 7-15-04.)
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| Section 99. Effective date. This Act takes effect upon | 20 |
| becoming law.
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