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




SB2265 EnrolledLRB102 13807 CPF 19157 b

1    AN ACT concerning regulation.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
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
17purposes of administering Titles XVIII and XIX of the Social
18Security Act.
19    (b) Except in the case of an emergency, psychotropic
20medication shall not be administered without the informed
21consent of the resident or the resident's surrogate decision
22maker. "Psychotropic medication" means medication that is used
23for or listed as used for psychotropic, antidepressant,



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1antimanic, or antianxiety behavior modification or behavior
2management purposes in the latest editions of the AMA Drug
3Evaluations or the Physician's Desk Reference. "Emergency" has
4the same meaning as in Section 1-112 of the Nursing Home Care
5Act. A facility shall (i) document the alleged emergency in
6detail, including the facts surrounding the medication's need,
7and (ii) present this documentation to the resident and the
8resident's representative. The No later than January 1, 2021,
9the Department shall adopt, by rule, a protocol specifying how
10informed consent for psychotropic medication may be obtained
11or refused. The protocol shall require, at a minimum, a
12discussion between (i) the resident or the resident's
13surrogate decision maker and (ii) the resident's physician, a
14registered pharmacist (who is not a dispensing pharmacist for
15the facility where the resident lives), or a licensed nurse
16about the possible risks and benefits of a recommended
17medication and the use of standardized consent forms
18designated by the Department. The protocol shall include
19informing the resident, surrogate decision maker, or both of
20the existence of a copy of: the resident's care plan; the
21facility policies and procedures adopted in compliance with
22subsection (b-15) of this Section; and a notification that the
23most recent of the resident's care plans and the facility's
24policies are available to the resident or surrogate decision
25maker upon request. Each form designated or developed by the
26Department (i) shall be written in plain language, (ii) shall



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1be able to be downloaded from the Department's official
2website or another website designated by the Department, (iii)
3shall include information specific to the psychotropic
4medication for which consent is being sought, and (iv) shall
5be used for every resident for whom psychotropic drugs are
6prescribed. The Department shall utilize the rules, protocols,
7and forms developed and implemented under the Specialized
8Mental Health Rehabilitation Act of 2013 in effect on the
9effective date of this amendatory Act of the 101st General
10Assembly, except to the extent that this Act requires a
11different procedure, and except that the maximum possible
12period for informed consent shall be until: (1) a change in the
13prescription occurs, either as to type of psychotropic
14medication or an increase or decrease in dosage, dosage range,
15or titration schedule of the prescribed medication that was
16not included in the original informed consent; or (2) a
17resident's care plan changes. The Department may further amend
18the rules after January 1, 2021 pursuant to existing
19rulemaking authority. In addition to creating those forms, the
20Department shall approve the use of any other informed consent
21forms that meet criteria developed by the Department. At the
22discretion of the Department, informed consent forms may
23include side effects that the Department reasonably believes
24are more common, with a direction that more complete
25information can be found via a link on the Department's
26website to third-party websites with more complete



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1information, such as the United States Food and Drug
2Administration's website. The Department or a facility shall
3incur no liability for information provided on a consent form
4so long as the consent form is substantially accurate based
5upon generally accepted medical principles and if the form
6includes the website links.
7    Informed consent shall be sought from the resident. For
8the purposes of this Section, "surrogate decision maker" means
9an individual representing the resident's interests as
10permitted by this Section. Informed consent shall be sought by
11the resident's guardian of the person if one has been named by
12a court of competent jurisdiction. In the absence of a
13court-ordered guardian, informed consent shall be sought from
14a health care agent under the Illinois Power of Attorney Act
15who has authority to give consent. If neither a court-ordered
16guardian of the person nor a health care agent under the
17Illinois Power of Attorney Act is available and the attending
18physician determines that the resident lacks capacity to make
19decisions, informed consent shall be sought from the
20resident's attorney-in-fact designated under the Mental Health
21Treatment Preference Declaration Act, if applicable, or the
22resident's representative.
23    In addition to any other penalty prescribed by law, a
24facility that is found to have violated this subsection, or
25the federal certification requirement that informed consent be
26obtained before administering a psychotropic medication, shall



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1thereafter be required to obtain the signatures of 2 licensed
2health care professionals on every form purporting to give
3informed consent for the administration of a psychotropic
4medication, certifying the personal knowledge of each health
5care professional that the consent was obtained in compliance
6with the requirements of this subsection.
7    (b-5) A facility must obtain voluntary informed consent,
8in writing, from a resident or the resident's surrogate
9decision maker before administering or dispensing a
10psychotropic medication to that resident. When informed
11consent is not required for a change in dosage, the facility
12shall note in the resident's file that the resident was
13informed of the dosage change prior to the administration of
14the medication or that verbal, written, or electronic notice
15has been communicated to the resident's surrogate decision
16maker that a change in dosage has occurred.
17    (b-10) No facility shall deny continued residency to a
18person on the basis of the person's or resident's, or the
19person's or resident's surrogate decision maker's, refusal of
20the administration of psychotropic medication, unless the
21facility can demonstrate that the resident's refusal would
22place the health and safety of the resident, the facility
23staff, other residents, or visitors at risk.
24    A facility that alleges that the resident's refusal to
25consent to the administration of psychotropic medication will
26place the health and safety of the resident, the facility



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1staff, other residents, or visitors at risk must: (1) document
2the alleged risk in detail; (2) present this documentation to
3the resident or the resident's surrogate decision maker, to
4the Department, and to the Office of the State Long Term Care
5Ombudsman; and (3) inform the resident or his or her surrogate
6decision maker of his or her right to appeal to the Department.
7The documentation of the alleged risk shall include a
8description of all nonpharmacological or alternative care
9options attempted and why they were unsuccessful.
10    (b-15) Within 100 days after the effective date of any
11rules adopted by the Department under subsection (b) of this
12Section, all facilities shall implement written policies and
13procedures for compliance with this Section. When the
14Department conducts its annual survey of a facility, the
15surveyor may review these written policies and procedures and
17        (1) give written notice to the facility that the
18    policies or procedures are sufficient to demonstrate the
19    facility's intent to comply with this Section; or
20        (2) provide written notice to the facility that the
21    proposed policies and procedures are deficient, identify
22    the areas that are deficient, and provide 30 days for the
23    facility to submit amended policies and procedures that
24    demonstrate its intent to comply with this Section.
25    A facility's failure to submit the documentation required
26under this subsection is sufficient to demonstrate its intent



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1to not comply with this Section and shall be grounds for review
2by the Department.
3    All facilities must provide training and education on the
4requirements of this Section to all personnel involved in
5providing care to residents and train and educate such
6personnel on the methods and procedures to effectively
7implement the facility's policies. Training and education
8provided under this Section must be documented in each
9personnel file.
10    (b-20) Upon the receipt of a report of any violation of
11this Section, the Department shall investigate and, upon
12finding sufficient evidence of a violation of this Section,
13may proceed with disciplinary action against the licensee of
14the facility. In any administrative disciplinary action under
15this subsection, the Department shall have the discretion to
16determine the gravity of the violation and, taking into
17account mitigating and aggravating circumstances and facts,
18may adjust the disciplinary action accordingly.
19    (b-25) A violation of informed consent that, for an
20individual resident, lasts for 7 days or more under this
21Section is, at a minimum, a Type "B" violation. A second
22violation of informed consent within a year from a previous
23violation in the same facility regardless of the duration of
24the second violation is, at a minimum, a Type "B" violation.
25    (b-30) Any violation of this Section by a facility may be
26enforced by an action brought by the Department in the name of



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1the People of Illinois for injunctive relief, civil penalties,
2or both injunctive relief and civil penalties. The Department
3may initiate the action upon its own complaint or the
4complaint of any other interested party.
5    (b-35) Any resident who has been administered a
6psychotropic medication in violation of this Section may bring
7an action for injunctive relief, civil damages, and costs and
8attorney's fees against any facility responsible for the
10    (b-40) An action under this Section must be filed within 2
11years of either the date of discovery of the violation that
12gave rise to the claim or the last date of an instance of a
13noncompliant administration of psychotropic medication to the
14resident, whichever is later.
15    (b-45) A facility subject to action under this Section
16shall be liable for damages of up to $500 for each day after
17discovery of a violation that the facility violates the
18requirements of this Section.
19    (b-55) The rights provided for in this Section are
20cumulative to existing resident rights. No part of this
21Section shall be interpreted as abridging, abrogating, or
22otherwise diminishing existing resident rights or causes of
23action at law or equity.
24    (c) The requirements of this Section are intended to
25control in a conflict with the requirements of Sections 2-102
26and 2-107.2 of the Mental Health and Developmental



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1Disabilities Code with respect to the administration of
2psychotropic medication.
3    (d) In this Section only, "licensed nurse" means an
4advanced practice registered nurse, a registered nurse, or a
5licensed practical nurse.
6(Source: P.A. 101-10, eff. 6-5-19.)
7    Section 99. Effective date. This Act takes effect upon
8becoming law.