Full Text of HB5571 101st General Assembly
HB5571 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 HB5571 Introduced , by Rep. Maurice A. West, II SYNOPSIS AS INTRODUCED: |
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Amends the Nursing Home Care Act. Provides that the maximum possible period for informed consent to administration of psychotropic medication shall be until: a change in the prescription occurs, either as to type of psychotropic medication or an increase in the dosage, unless the physician's order provides for a change in the type of medication or an increase in dosage (rather that as to type of psychotropic medication or dosage); or a resident's care plan changes. Requires informed consent to be sought from (rather than by) a resident's guardian of the person if one has been named by a court of competent jurisdiction. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning regulation.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Nursing Home Care Act is amended by changing | 5 | | 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
| 9 | | unnecessary drug is any drug used in an excessive dose, | 10 | | including in
duplicative therapy; for excessive duration; | 11 | | without adequate
monitoring; without adequate indications for | 12 | | its use; or in the
presence of adverse consequences that | 13 | | indicate the drugs should be reduced or
discontinued. The | 14 | | Department shall adopt, by rule, the standards
for unnecessary
| 15 | | drugs
contained in interpretive guidelines issued by the United | 16 | | States Department of
Health and Human Services for the purposes | 17 | | of administering Titles XVIII and XIX of
the Social Security | 18 | | Act.
| 19 | | (b) 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"
means medication that
is used | 23 | | for or listed as used for psychotropic, antidepressant, |
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| 1 | | antimanic, or
antianxiety behavior modification or behavior | 2 | | management purposes in the latest
editions of the AMA Drug | 3 | | Evaluations or the Physician's Desk Reference. "Emergency" has | 4 | | the same meaning as in Section 1-112 of the Nursing Home Care | 5 | | Act. A facility shall (i) document the alleged emergency in | 6 | | detail, including the facts surrounding the medication's need, | 7 | | and (ii) present this documentation to the resident and the | 8 | | resident's representative. No later than January 1, 2021, the | 9 | | Department shall adopt, by rule, a protocol specifying how | 10 | | informed consent for psychotropic medication may be obtained or | 11 | | refused. The protocol shall require, at a minimum, a discussion | 12 | | between (i) the resident or the resident's surrogate decision | 13 | | maker and (ii) the resident's physician, a registered | 14 | | pharmacist (who is not a dispensing pharmacist for the facility | 15 | | where the resident lives), or a licensed nurse about the | 16 | | possible risks and benefits of a recommended medication and the | 17 | | use of standardized consent forms designated by the Department. | 18 | | The protocol shall include informing the resident, surrogate | 19 | | decision maker, or both of the existence of a copy of: the | 20 | | resident's care plan; the facility policies and procedures | 21 | | adopted in compliance with subsection (b-15) of this Section; | 22 | | and a notification that the most recent of the resident's care | 23 | | plans and the facility's policies are available to the resident | 24 | | or surrogate decision maker upon request. Each form developed | 25 | | by the Department (i) shall be written in plain language, (ii) | 26 | | shall be able to be downloaded from the Department's official |
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| 1 | | website, (iii) shall include information specific to the | 2 | | psychotropic medication for which consent is being sought, and | 3 | | (iv) shall be used for every resident for whom psychotropic | 4 | | drugs are prescribed. The Department shall utilize the rules, | 5 | | protocols, and forms developed and implemented under the | 6 | | Specialized Mental Health Rehabilitation Act of 2013 in effect | 7 | | on the effective date of this amendatory Act of the 101st | 8 | | General Assembly, except to the extent that this Act requires a | 9 | | different procedure, and except that the maximum possible | 10 | | period for informed consent shall be until: (1) a change in the | 11 | | prescription occurs, either as to type of psychotropic | 12 | | medication or an increase in the dosage , unless the physician's | 13 | | order provides for a change in the type of medication or an | 14 | | increase in dosage ; or (2) a resident's care plan changes. The | 15 | | Department may further amend the rules after January 1, 2021 | 16 | | pursuant to existing rulemaking authority. In addition to | 17 | | creating those forms, the Department shall approve the use of | 18 | | any other informed consent forms that meet criteria developed | 19 | | by the Department. At the discretion of the Department, | 20 | | informed consent forms may include side effects that the | 21 | | Department reasonably believes are more common, with a | 22 | | direction that more complete information can be found via a | 23 | | link on the Department's website to third-party websites with | 24 | | more complete information, such as the United States Food and | 25 | | Drug Administration's website. The Department or a facility | 26 | | shall incur no liability for information provided on a consent |
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| 1 | | form so long as the consent form is substantially accurate | 2 | | based upon generally accepted medical principles and if the | 3 | | form includes the website links. | 4 | | Informed consent shall be sought from the resident. For the | 5 | | purposes of this Section, "surrogate decision maker" means an | 6 | | individual representing the resident's interests as permitted | 7 | | by this Section. Informed consent shall be sought from by the | 8 | | resident's guardian of the person if one has been named by a | 9 | | court of competent jurisdiction. In the absence of a | 10 | | court-ordered guardian, informed consent shall be sought from a | 11 | | health care agent under the Illinois Power of Attorney Act who | 12 | | has authority to give consent. If neither a court-ordered | 13 | | guardian of the person nor a health care agent under the | 14 | | Illinois Power of Attorney Act is available and the attending | 15 | | physician determines that the resident lacks capacity to make | 16 | | decisions, informed consent shall be sought from the resident's | 17 | | attorney-in-fact designated under the Mental Health Treatment | 18 | | Preference Declaration Act, if applicable, or the resident's | 19 | | representative. | 20 | | In addition to any other penalty prescribed by law, a | 21 | | facility that is found to have violated this subsection, or the | 22 | | federal certification requirement that informed consent be | 23 | | obtained before administering a psychotropic medication, shall | 24 | | thereafter be required to obtain the signatures of 2 licensed | 25 | | health care professionals on every form purporting to give | 26 | | informed consent for the administration of a psychotropic |
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| 1 | | medication, certifying the personal knowledge of each health | 2 | | care professional that the consent was obtained in compliance | 3 | | with the requirements of this subsection.
| 4 | | (b-5) A facility must obtain voluntary informed consent, in | 5 | | writing, from a resident or the resident's surrogate decision | 6 | | maker before administering or dispensing a psychotropic | 7 | | medication to that resident. | 8 | | (b-10) No facility shall deny continued residency to a | 9 | | person on the basis of the person's or resident's, or the | 10 | | person's or resident's surrogate decision maker's, refusal of | 11 | | the administration of psychotropic medication, unless the | 12 | | facility can demonstrate that the resident's refusal would | 13 | | place the health and safety of the resident, the facility | 14 | | staff, other residents, or visitors at risk. | 15 | | A facility that alleges that the resident's refusal to | 16 | | consent to the administration of psychotropic medication will | 17 | | place the health and safety of the resident, the facility | 18 | | staff, other residents, or visitors at risk must: (1) document | 19 | | the alleged risk in detail; (2) present this documentation to | 20 | | the resident or the resident's surrogate decision maker, to the | 21 | | Department, and to the Office of the State Long Term Care | 22 | | Ombudsman; and (3) inform the resident or his or her surrogate | 23 | | decision maker of his or her right to appeal to the Department. | 24 | | The documentation of the alleged risk shall include a | 25 | | description of all nonpharmacological or alternative care | 26 | | options attempted and why they were unsuccessful. |
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| 1 | | (b-15) Within 100 days after the effective date of any | 2 | | rules adopted by the Department under subsection (b) of this | 3 | | Section, all facilities shall implement written policies and | 4 | | procedures for compliance with this Section. When the | 5 | | Department conducts its annual survey of a facility, the | 6 | | surveyor may review these written policies and procedures and | 7 | | either: | 8 | | (1) give written notice to the facility that the | 9 | | policies or procedures are sufficient to demonstrate the | 10 | | facility's intent to comply with this Section; or | 11 | | (2) provide written notice to the facility that the | 12 | | proposed policies and procedures are deficient, identify | 13 | | the areas that are deficient, and provide 30 days for the | 14 | | facility to submit amended policies and procedures that | 15 | | demonstrate its intent to comply with this Section. | 16 | | A facility's failure to submit the documentation required | 17 | | under this subsection is sufficient to demonstrate its intent | 18 | | to not comply with this Section and shall be grounds for review | 19 | | by the Department. | 20 | | All facilities must provide training and education on the | 21 | | requirements of this Section to all personnel involved in | 22 | | providing care to residents and train and educate such | 23 | | personnel on the methods and procedures to effectively | 24 | | implement the facility's policies. Training and education | 25 | | provided under this Section must be documented in each | 26 | | personnel file. |
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| 1 | | (b-20) Upon the receipt of a report of any violation of | 2 | | this Section, the Department shall investigate and, upon | 3 | | finding sufficient evidence of a violation of this Section, may | 4 | | proceed with disciplinary action against the licensee of the | 5 | | facility. In any administrative disciplinary action under this | 6 | | subsection, the Department shall have the discretion to | 7 | | determine the gravity of the violation and, taking into account | 8 | | mitigating and aggravating circumstances and facts, may adjust | 9 | | the disciplinary action accordingly. | 10 | | (b-25) A violation of informed consent that, for an | 11 | | individual resident, lasts for 7 days or more under this | 12 | | Section is, at a minimum, a Type "B" violation. A second | 13 | | violation of informed consent within a year from a previous | 14 | | violation in the same facility regardless of the duration of | 15 | | the second violation is, at a minimum, a Type "B" violation. | 16 | | (b-30) Any violation of this Section by a facility may be | 17 | | enforced by an action brought by the Department in the name of | 18 | | the People of Illinois for injunctive relief, civil penalties, | 19 | | or both injunctive relief and civil penalties. The Department | 20 | | may initiate the action upon its own complaint or the complaint | 21 | | of any other interested party. | 22 | | (b-35) Any resident who has been administered a | 23 | | psychotropic medication in violation of this Section may bring | 24 | | an action for injunctive relief, civil damages, and costs and | 25 | | attorney's fees against any facility responsible for the | 26 | | violation. |
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| 1 | | (b-40) An action under this Section must be filed within 2 | 2 | | years of either the date of discovery of the violation that | 3 | | gave rise to the claim or the last date of an instance of a | 4 | | noncompliant administration of psychotropic medication to the | 5 | | resident, whichever is later. | 6 | | (b-45) A facility subject to action under this Section | 7 | | shall be liable for damages of up to $500 for each day after | 8 | | discovery of a violation that the facility violates the | 9 | | requirements of this Section. | 10 | | (b-55) The rights provided for in this Section are | 11 | | cumulative to existing resident rights. No part of this Section | 12 | | shall be interpreted as abridging, abrogating, or otherwise | 13 | | diminishing existing resident rights or causes of action at law | 14 | | or equity. | 15 | | (c) The requirements of
this Section are intended to | 16 | | control in a conflict
with the requirements of Sections 2-102 | 17 | | and 2-107.2
of the Mental Health and Developmental Disabilities | 18 | | Code with respect to the
administration of psychotropic | 19 | | medication.
| 20 | | (Source: P.A. 101-10, eff. 6-5-19.)
| 21 | | Section 99. Effective date. This Act takes effect upon | 22 | | becoming law.
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