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|[ Introduced ]||[ Engrossed ]||[ House Amendment 004 ]|
92_HB1900sam001 LRB9205361DJgcam09 1 AMENDMENT TO HOUSE BILL 1900 2 AMENDMENT NO. . Amend House Bill 1900 by replacing 3 everything after the enacting clause with the following: 4 "AN ACT concerning abortions."; and 5 by replacing everything after the enacting clause with the 6 following: 7 "Section 1. Short title. This Act may be cited as the 8 Parental Notice of Abortion Act of 2001. 9 Section 5. Legislative findings and purpose. The General 10 Assembly finds that notification of an adult family member as 11 defined in this Act is in the best interest of an 12 unemancipated minor, and the General Assembly's purpose in 13 enacting this parental notice law is to further the important 14 and compelling State interests of protecting the best 15 interests of an unemancipated minor, fostering the family 16 unit and preserving it as a viable social unit, protecting 17 the constitutional rights of parents to rear children who are 18 members of their household, and preventing the influx of 19 minors entering the State of Illinois to evade the laws of 20 their home state that require parental notification or 21 parental consent. -2- LRB9205361DJgcam09 1 The medical, emotional, and psychological consequences of 2 abortion are sometimes serious and long-lasting, and immature 3 minors often lack the ability to make fully informed choices 4 that consider both the immediate and long-range consequences. 5 Parental consultation is usually in the best interest of 6 the minor and is desirable since the capacity to become 7 pregnant and the capacity for mature judgment concerning the 8 wisdom of an abortion are not necessarily related. Parents 9 ordinarily possess information essential to a physician's 10 exercise of his or her best medical judgment concerning the 11 minor, and parents who are aware their daughter has had an 12 abortion may better ensure her appropriate medical attention 13 after her abortion. 14 Section 10. Definitions. In this Act: 15 "Abortion" means the use of any instrument, medicine, or 16 drug, or any other substance or device, to terminate the 17 pregnancy of a woman known to be pregnant with an intention 18 other than to increase the probability of a live birth, to 19 preserve the life or health of a child after live birth, or 20 to remove a dead fetus. 21 "Actual notice" means the giving of notice directly, in 22 person or by telephone, and not by facsimile, voice mail, or 23 answering machine message. 24 "Adult family member" means a person over 18 years of age 25 who is: 26 (1) the parent of the minor or incompetent person; 27 (2) a step-parent married to and residing with the 28 custodial parent of the minor or incompetent person; or 29 (3) a legal guardian of the minor or incompetent 30 person. 31 "Constructive notice" means notice sent by certified mail 32 to the last known address of the person entitled to notice, 33 with delivery deemed to have occurred 48 hours after the -3- LRB9205361DJgcam09 1 notice is mailed. 2 "Incompetent person" means a person who has been adjudged 3 as mentally ill or developmentally disabled and who, because 4 of her mental illness or developmental disability, is not 5 fully able to manage her person and for whom a guardian of 6 the person has been appointed under subdivision (a)(1) of 7 Section 11a-3 of the Probate Act of 1975. 8 "Medical emergency" means a condition that, on the basis 9 of a physician's good faith clinical judgment, so complicates 10 the medical condition of a pregnant woman as to necessitate 11 the immediate abortion of her pregnancy to avert her death or 12 for which a delay will create serious risk of substantial and 13 irreversible impairment of major bodily function. 14 "Minor" means any person under 18 years of age who is not 15 or has not been married or who has not been emancipated under 16 the Emancipation of Mature Minors Act. 17 "Neglect" means the failure of an adult family member to 18 supply a child with necessary food, clothing, shelter, or 19 medical care when reasonably able to do so or the failure to 20 protect a child from conditions or actions that imminently 21 and seriously endanger the child's physical or mental health 22 when reasonably able to do so. 23 "Physical abuse" means any physical injury intentionally 24 inflicted by an adult family member on a child. 25 "Physician" means a person licensed to practice medicine 26 in all its branches under the Medical Practice Act of 1987. 27 "Sexual abuse" means any sexual conduct or sexual 28 penetration as defined in Section 12-12 of the Criminal Code 29 of 1961 that is prohibited by the criminal laws of the State 30 of Illinois and committed against a minor by an adult family 31 member as defined in this Act. 32 Section 15. Notice to adult family member. No person 33 shall knowingly perform an abortion upon a minor or upon an -4- LRB9205361DJgcam09 1 incompetent person unless the person or his or her agent has 2 given at least 48 hours actual notice to an adult family 3 member of the pregnant minor or incompetent person of his or 4 her intention to perform the abortion, unless that person or 5 his or her agent has received a written statement by a 6 referring physician certifying that the referring physician 7 or his or her agent has given at least 48 hours notice to an 8 adult family member of the pregnant minor or incompetent 9 person. If actual notice is not possible after a reasonable 10 effort, the person or his or her agent must give 48 hours 11 constructive notice. 12 Section 20. Exceptions. Notice is not required under 13 this Act if: 14 (1) at the time the abortion is performed, the minor 15 or incompetent person is accompanied by a person entitled 16 to notice under this Act; or 17 (2) notice under this Act is waived in writing by a 18 person who is entitled to that notice; or 19 (3) the attending physician certifies in the 20 patient's medical record that a medical emergency exists 21 and there is insufficient time to provide the required 22 notice; or 23 (4) the minor declares in writing that she is a 24 victim of sexual abuse, neglect, or physical abuse by an 25 adult family member as defined in this Act, in which case 26 (i) the attending physician must certify in the patient's 27 medical record that he or she has received the written 28 declaration of abuse or neglect and (ii) any notification 29 of public authorities of abuse that may be required under 30 other laws of this State need not be made by the person 31 performing the abortion until after the minor receives an 32 abortion that otherwise complies with the requirements of 33 this Act; or -5- LRB9205361DJgcam09 1 (5) notice under this Act is waived under Section 2 25. 3 Section 25. Procedure for judicial waiver of notice. 4 (a) The requirements and procedures under this Section 5 are available to minors and incompetent persons whether or 6 not they are residents of this State. 7 (b) A minor or incompetent person may petition any 8 circuit court for a waiver of the parental notice of abortion 9 requirement under this Act and may participate in proceedings 10 on her own behalf. The court shall appoint a guardian ad 11 litem for her in any such proceedings. A guardian ad litem 12 appointed under this Act must act to maintain the 13 confidentiality of the proceedings. The circuit court shall 14 advise the minor or incompetent person that she has a right 15 to court-appointed counsel and shall provide her with counsel 16 upon her request. 17 (c) Court proceedings under this Section shall be 18 confidential and must ensure the anonymity of the minor or 19 incompetent person. All court proceedings under this Section 20 shall be sealed. The minor or incompetent person has the 21 right to file her petition in the circuit court using a 22 pseudonym or using solely her initials. All documents 23 related to the petition shall be confidential and shall not 24 be made available to the public. These proceedings shall be 25 given precedence over other pending matters to the extent 26 necessary to ensure that the court reaches a decision 27 promptly. The court shall rule and issue written findings of 28 fact and conclusions of law within 48 hours after the 29 petition is filed, except that the 48-hour limitation may be 30 extended at the request of the minor or incompetent person. 31 If the court fails to rule within the 48-hour period and an 32 extension is not requested, then the petition shall be deemed 33 to have been granted, and the notice requirement shall be -6- LRB9205361DJgcam09 1 waived. 2 (d) Notice under this Act shall be waived if the court 3 finds by clear and convincing evidence either: 4 (1) that the minor or incompetent person is 5 sufficiently mature and well-enough informed to decide 6 intelligently whether to have an abortion; or 7 (2) that notification under Section 15 of this Act 8 would not be in the best interests of the minor or 9 incompetent person. 10 (e) A court that conducts proceedings under this Section 11 shall issue written and specific factual findings and legal 12 conclusions supporting its decision and shall order that a 13 confidential record of the evidence and the judge's findings 14 and conclusions be maintained. 15 (f) An expedited confidential appeal shall be available 16 to any minor or incompetent person to whom the circuit court 17 denies a waiver of notice under this Act. An order 18 authorizing an abortion without notice is not subject to 19 appeal. 20 (g) The following rules apply to the appeal of a denial 21 of a petition for waiver of parental notice of abortion under 22 this Section. These rules shall remain in effect only until 23 the Illinois Supreme Court issues its own rules providing for 24 an expedited confidential appeal of a denial of a petition 25 for waiver of parental notice. If the rules adopted by the 26 Illinois Supreme Court are declared unconstitutional, the 27 following rules are thereafter once again in effect. 28 (1) Review of the denial of a waiver of parental 29 notice under this Act shall be by petition filed in the 30 Appellate Court. An appropriate supporting record must 31 accompany the petition. The record must include the 32 notice of interlocutory appeal; the pleadings filed in 33 the circuit court, if any; the decision of the circuit 34 court, including the specific findings of fact and legal -7- LRB9205361DJgcam09 1 conclusions supporting the decision; and any supporting 2 documents of record the petition may offer. The record 3 may be authenticated by the certificate of the clerk of 4 the trial court or by the affidavit of an attorney or 5 party filing it. 6 (2) The minor or incompetent petitioner may file a 7 brief statement of facts and a short memorandum of law 8 supporting her petition. These may be filed instead of a 9 brief and abstract and must be filed within 2 days after 10 the denial of the petition for waiver of parental notice. 11 (3) Except by order of the court upon request of the 12 minor or incompetent petitioner or her guardian ad litem 13 or counsel, no extension of time may be granted. 14 (4) After the petitioner has filed the petition, 15 supporting record, and any memorandum, the Appellate 16 Court shall consider and decide the petition within 2 17 days. No oral argument on the petition may be heard. 18 (5) The minor or incompetent petitioner may appear 19 and file her notice of appeal and her petition using only 20 her initials or a pseudonym. If she does not use her own 21 name, however, she must provide the Clerk of the 22 Appellate Court with a name, telephone number, and 23 address where she can be reached to be informed of the 24 time and place of any hearing and the decision of the 25 court. 26 (6) The Appellate Court shall appoint counsel to 27 assist the minor or incompetent petitioner if she so 28 requests. 29 (7) All Appellate Court records concerning an appeal 30 under this Section shall be sealed as confidential. 31 Inspection and copying of any court records relating to 32 the proceeding and the minor or incompetent person who is 33 the subject of the proceeding shall not be available to 34 the minor or incompetent person who is the subject of the -8- LRB9205361DJgcam09 1 proceeding or to her guardian ad litem or counsel. 2 (8) Any further appeal to the Illinois Supreme Court 3 may be taken in a manner similar to that provided in 4 other civil cases. 5 (h) No fees shall be required of any minor or incompetent 6 person who avails herself of the procedures provided by this 7 Section. 8 Section 30. Minor's consent to abortion. A person may 9 not perform an abortion on a minor without the minor's 10 consent, except in a medical emergency. 11 Section 35. Reports. The Department of Public Health 12 must comply with the reporting requirements set forth in the 13 consent decree in Herbst v. O'Malley, case no. 84-C-5602 in 14 the U.S. District Court for the Northern District of 15 Illinois, Eastern Division. These reports must also include 16 a statement of whether the required notice under Section 15 17 of this Act was given and, if an exception to the notice 18 requirement applies, which exception was used. No patient's 19 name or any other information that could lead to the 20 identification of the patient may be used in any report 21 submitted under this Section. 22 Section 40. Penalties. 23 (a) A physician who willfully fails to provide notice as 24 required under this Act before performing an abortion on a 25 minor or an incompetent person shall be referred to the 26 Illinois State Medical Disciplinary Board for action in 27 accordance with Section 22 of the Medical Practice Act of 28 1987. 29 (b) A person, not authorized under this Act, who signs 30 any waiver of notice under this Act for a minor or 31 incompetent person seeking an abortion is guilty of a Class C -9- LRB9205361DJgcam09 1 misdemeanor. 2 (c) A person who discloses confidential information in 3 violation of Section 25 is guilty of a Class C misdemeanor. 4 Section 45. Immunity. A physician who, in good faith, 5 provides notice in accordance with Section 15 or relies on an 6 exception under Section 20 is not subject to any type of 7 civil or criminal liability or discipline for unprofessional 8 conduct for failure to give notice required under this Act. 9 Section 50. Severability. If any provision, word, 10 phrase, or clause of this Act, or its application to any 11 person or circumstance, is held invalid, the invalidity of 12 that provision or application does not affect the provisions, 13 words, phrases, clauses, or applications of the Act that can 14 be given effect without the invalid provision, word, phrase, 15 clause, or application, and to this end the provisions, 16 words, phrases, and clauses of this Act are declared to be 17 severable. 18 Section 90. The Medical Practice Act of 1987 is amended 19 by changing Sections 22 and 23 as follows: 20 (225 ILCS 60/22) (from Ch. 111, par. 4400-22) 21 Sec. 22. Disciplinary action. 22 (A) The Department may revoke, suspend, place on 23 probationary status, or take any other disciplinary action as 24 the Department may deem proper with regard to the license or 25 visiting professor permit of any person issued under this Act 26 to practice medicine, or to treat human ailments without the 27 use of drugs and without operative surgery upon any of the 28 following grounds: 29 (1) Performance of an elective abortion in any 30 place, locale, facility, or institution other than: -10- LRB9205361DJgcam09 1 (a) a facility licensed pursuant to the 2 Ambulatory Surgical Treatment Center Act; 3 (b) an institution licensed under the Hospital 4 Licensing Act; or 5 (c) an ambulatory surgical treatment center or 6 hospitalization or care facility maintained by the 7 State or any agency thereof, where such department 8 or agency has authority under law to establish and 9 enforce standards for the ambulatory surgical 10 treatment centers, hospitalization, or care 11 facilities under its management and control; or 12 (d) ambulatory surgical treatment centers, 13 hospitalization or care facilities maintained by the 14 Federal Government; or 15 (e) ambulatory surgical treatment centers, 16 hospitalization or care facilities maintained by any 17 university or college established under the laws of 18 this State and supported principally by public funds 19 raised by taxation. 20 (2) Performance of an abortion procedure in a 21 wilful and wanton manner on a woman who was not pregnant 22 at the time the abortion procedure was performed. 23 (3) The conviction of a felony in this or any other 24 jurisdiction, except as otherwise provided in subsection 25 B of this Section, whether or not related to practice 26 under this Act, or the entry of a guilty or nolo 27 contendere plea to a felony charge. 28 (4) Gross negligence in practice under this Act. 29 (5) Engaging in dishonorable, unethical or 30 unprofessional conduct of a character likely to deceive, 31 defraud or harm the public. 32 (6) Obtaining any fee by fraud, deceit, or 33 misrepresentation. 34 (7) Habitual or excessive use or abuse of drugs -11- LRB9205361DJgcam09 1 defined in law as controlled substances, of alcohol, or 2 of any other substances which results in the inability to 3 practice with reasonable judgment, skill or safety. 4 (8) Practicing under a false or, except as provided 5 by law, an assumed name. 6 (9) Fraud or misrepresentation in applying for, or 7 procuring, a license under this Act or in connection with 8 applying for renewal of a license under this Act. 9 (10) Making a false or misleading statement 10 regarding their skill or the efficacy or value of the 11 medicine, treatment, or remedy prescribed by them at 12 their direction in the treatment of any disease or other 13 condition of the body or mind. 14 (11) Allowing another person or organization to use 15 their license, procured under this Act, to practice. 16 (12) Disciplinary action of another state or 17 jurisdiction against a license or other authorization to 18 practice as a medical doctor, doctor of osteopathy, 19 doctor of osteopathic medicine or doctor of chiropractic, 20 a certified copy of the record of the action taken by the 21 other state or jurisdiction being prima facie evidence 22 thereof. 23 (13) Violation of any provision of this Act or of 24 the Medical Practice Act prior to the repeal of that Act, 25 or violation of the rules, or a final administrative 26 action of the Director, after consideration of the 27 recommendation of the Disciplinary Board. 28 (14) Dividing with anyone other than physicians 29 with whom the licensee practices in a partnership, 30 Professional Association, limited liability company, or 31 Medical or Professional Corporation any fee, commission, 32 rebate or other form of compensation for any professional 33 services not actually and personally rendered. Nothing 34 contained in this subsection prohibits persons holding -12- LRB9205361DJgcam09 1 valid and current licenses under this Act from practicing 2 medicine in partnership under a partnership agreement, 3 including a limited liability partnership, in a limited 4 liability company under the Limited Liability Company 5 Act, in a corporation authorized by the Medical 6 Corporation Act, as an association authorized by the 7 Professional Association Act, or in a corporation under 8 the Professional Corporation Act or from pooling, 9 sharing, dividing or apportioning the fees and monies 10 received by them or by the partnership, corporation or 11 association in accordance with the partnership agreement 12 or the policies of the Board of Directors of the 13 corporation or association. Nothing contained in this 14 subsection prohibits 2 or more corporations authorized by 15 the Medical Corporation Act, from forming a partnership 16 or joint venture of such corporations, and providing 17 medical, surgical and scientific research and knowledge 18 by employees of these corporations if such employees are 19 licensed under this Act, or from pooling, sharing, 20 dividing, or apportioning the fees and monies received by 21 the partnership or joint venture in accordance with the 22 partnership or joint venture agreement. Nothing 23 contained in this subsection shall abrogate the right of 24 2 or more persons, holding valid and current licenses 25 under this Act, to each receive adequate compensation for 26 concurrently rendering professional services to a patient 27 and divide a fee; provided, the patient has full 28 knowledge of the division, and, provided, that the 29 division is made in proportion to the services performed 30 and responsibility assumed by each. 31 (15) A finding by the Medical Disciplinary Board 32 that the registrant after having his or her license 33 placed on probationary status or subjected to conditions 34 or restrictions violated the terms of the probation or -13- LRB9205361DJgcam09 1 failed to comply with such terms or conditions. 2 (16) Abandonment of a patient. 3 (17) Prescribing, selling, administering, 4 distributing, giving or self-administering any drug 5 classified as a controlled substance (designated product) 6 or narcotic for other than medically accepted therapeutic 7 purposes. 8 (18) Promotion of the sale of drugs, devices, 9 appliances or goods provided for a patient in such manner 10 as to exploit the patient for financial gain of the 11 physician. 12 (19) Offering, undertaking or agreeing to cure or 13 treat disease by a secret method, procedure, treatment or 14 medicine, or the treating, operating or prescribing for 15 any human condition by a method, means or procedure which 16 the licensee refuses to divulge upon demand of the 17 Department. 18 (20) Immoral conduct in the commission of any act 19 including, but not limited to, commission of an act of 20 sexual misconduct related to the licensee's practice. 21 (21) Wilfully making or filing false records or 22 reports in his or her practice as a physician, including, 23 but not limited to, false records to support claims 24 against the medical assistance program of the Department 25 of Public Aid under the Illinois Public Aid Code. 26 (22) Wilful omission to file or record, or wilfully 27 impeding the filing or recording, or inducing another 28 person to omit to file or record, medical reports as 29 required by law, or wilfully failing to report an 30 instance of suspected abuse or neglect as required by 31 law. 32 (23) Being named as a perpetrator in an indicated 33 report by the Department of Children and Family Services 34 under the Abused and Neglected Child Reporting Act, and -14- LRB9205361DJgcam09 1 upon proof by clear and convincing evidence that the 2 licensee has caused a child to be an abused child or 3 neglected child as defined in the Abused and Neglected 4 Child Reporting Act. 5 (24) Solicitation of professional patronage by any 6 corporation, agents or persons, or profiting from those 7 representing themselves to be agents of the licensee. 8 (25) Gross and wilful and continued overcharging 9 for professional services, including filing false 10 statements for collection of fees for which services are 11 not rendered, including, but not limited to, filing such 12 false statements for collection of monies for services 13 not rendered from the medical assistance program of the 14 Department of Public Aid under the Illinois Public Aid 15 Code. 16 (26) A pattern of practice or other behavior which 17 demonstrates incapacity or incompetence to practice under 18 this Act. 19 (27) Mental illness or disability which results in 20 the inability to practice under this Act with reasonable 21 judgment, skill or safety. 22 (28) Physical illness, including, but not limited 23 to, deterioration through the aging process, or loss of 24 motor skill which results in a physician's inability to 25 practice under this Act with reasonable judgment, skill 26 or safety. 27 (29) Cheating on or attempt to subvert the 28 licensing examinations administered under this Act. 29 (30) Wilfully or negligently violating the 30 confidentiality between physician and patient except as 31 required by law. 32 (31) The use of any false, fraudulent, or deceptive 33 statement in any document connected with practice under 34 this Act. -15- LRB9205361DJgcam09 1 (32) Aiding and abetting an individual not licensed 2 under this Act in the practice of a profession licensed 3 under this Act. 4 (33) Violating state or federal laws or regulations 5 relating to controlled substances. 6 (34) Failure to report to the Department any 7 adverse final action taken against them by another 8 licensing jurisdiction (any other state or any territory 9 of the United States or any foreign state or country), by 10 any peer review body, by any health care institution, by 11 any professional society or association related to 12 practice under this Act, by any governmental agency, by 13 any law enforcement agency, or by any court for acts or 14 conduct similar to acts or conduct which would constitute 15 grounds for action as defined in this Section. 16 (35) Failure to report to the Department surrender 17 of a license or authorization to practice as a medical 18 doctor, a doctor of osteopathy, a doctor of osteopathic 19 medicine, or doctor of chiropractic in another state or 20 jurisdiction, or surrender of membership on any medical 21 staff or in any medical or professional association or 22 society, while under disciplinary investigation by any of 23 those authorities or bodies, for acts or conduct similar 24 to acts or conduct which would constitute grounds for 25 action as defined in this Section. 26 (36) Failure to report to the Department any 27 adverse judgment, settlement, or award arising from a 28 liability claim related to acts or conduct similar to 29 acts or conduct which would constitute grounds for action 30 as defined in this Section. 31 (37) Failure to transfer copies of medical records 32 as required by law. 33 (38) Failure to furnish the Department, its 34 investigators or representatives, relevant information, -16- LRB9205361DJgcam09 1 legally requested by the Department after consultation 2 with the Chief Medical Coordinator or the Deputy Medical 3 Coordinator. 4 (39) Violating the Health Care Worker Self-Referral 5 Act. 6 (40) Willful failure to provide notice when notice 7 is required under the Parental Notice of Abortion Act of 8 2001.
Willful failure to provide notice when notice is9 required under the Parental Notice of Abortion Act of10 1995. 11 (41) Failure to establish and maintain records of 12 patient care and treatment as required by this law. 13 (42) Entering into an excessive number of written 14 collaborative agreements with licensed advanced practice 15 nurses resulting in an inability to adequately 16 collaborate and provide medical direction. 17 (43) Repeated failure to adequately collaborate 18 with or provide medical direction to a licensed advanced 19 practice nurse. 20 All proceedings to suspend, revoke, place on probationary 21 status, or take any other disciplinary action as the 22 Department may deem proper, with regard to a license on any 23 of the foregoing grounds, must be commenced within 3 years 24 next after receipt by the Department of a complaint alleging 25 the commission of or notice of the conviction order for any 26 of the acts described herein. Except for the grounds 27 numbered (8), (9) and (29), no action shall be commenced more 28 than 5 years after the date of the incident or act alleged to 29 have violated this Section. In the event of the settlement 30 of any claim or cause of action in favor of the claimant or 31 the reduction to final judgment of any civil action in favor 32 of the plaintiff, such claim, cause of action or civil action 33 being grounded on the allegation that a person licensed under 34 this Act was negligent in providing care, the Department -17- LRB9205361DJgcam09 1 shall have an additional period of one year from the date of 2 notification to the Department under Section 23 of this Act 3 of such settlement or final judgment in which to investigate 4 and commence formal disciplinary proceedings under Section 36 5 of this Act, except as otherwise provided by law. The time 6 during which the holder of the license was outside the State 7 of Illinois shall not be included within any period of time 8 limiting the commencement of disciplinary action by the 9 Department. 10 The entry of an order or judgment by any circuit court 11 establishing that any person holding a license under this Act 12 is a person in need of mental treatment operates as a 13 suspension of that license. That person may resume their 14 practice only upon the entry of a Departmental order based 15 upon a finding by the Medical Disciplinary Board that they 16 have been determined to be recovered from mental illness by 17 the court and upon the Disciplinary Board's recommendation 18 that they be permitted to resume their practice. 19 The Department may refuse to issue or take disciplinary 20 action concerning the license of any person who fails to file 21 a return, or to pay the tax, penalty or interest shown in a 22 filed return, or to pay any final assessment of tax, penalty 23 or interest, as required by any tax Act administered by the 24 Illinois Department of Revenue, until such time as the 25 requirements of any such tax Act are satisfied as determined 26 by the Illinois Department of Revenue. 27 The Department, upon the recommendation of the 28 Disciplinary Board, shall adopt rules which set forth 29 standards to be used in determining: 30 (a) when a person will be deemed sufficiently 31 rehabilitated to warrant the public trust; 32 (b) what constitutes dishonorable, unethical or 33 unprofessional conduct of a character likely to deceive, 34 defraud, or harm the public; -18- LRB9205361DJgcam09 1 (c) what constitutes immoral conduct in the 2 commission of any act, including, but not limited to, 3 commission of an act of sexual misconduct related to the 4 licensee's practice; and 5 (d) what constitutes gross negligence in the 6 practice of medicine. 7 However, no such rule shall be admissible into evidence 8 in any civil action except for review of a licensing or other 9 disciplinary action under this Act. 10 In enforcing this Section, the Medical Disciplinary 11 Board, upon a showing of a possible violation, may compel any 12 individual licensed to practice under this Act, or who has 13 applied for licensure or a permit pursuant to this Act, to 14 submit to a mental or physical examination, or both, as 15 required by and at the expense of the Department. The 16 examining physician or physicians shall be those specifically 17 designated by the Disciplinary Board. The Medical 18 Disciplinary Board or the Department may order the examining 19 physician to present testimony concerning this mental or 20 physical examination of the licensee or applicant. No 21 information shall be excluded by reason of any common law or 22 statutory privilege relating to communication between the 23 licensee or applicant and the examining physician. The 24 individual to be examined may have, at his or her own 25 expense, another physician of his or her choice present 26 during all aspects of the examination. Failure of any 27 individual to submit to mental or physical examination, when 28 directed, shall be grounds for suspension of his or her 29 license until such time as the individual submits to the 30 examination if the Disciplinary Board finds, after notice and 31 hearing, that the refusal to submit to the examination was 32 without reasonable cause. If the Disciplinary Board finds a 33 physician unable to practice because of the reasons set forth 34 in this Section, the Disciplinary Board shall require such -19- LRB9205361DJgcam09 1 physician to submit to care, counseling, or treatment by 2 physicians approved or designated by the Disciplinary Board, 3 as a condition for continued, reinstated, or renewed 4 licensure to practice. Any physician, whose license was 5 granted pursuant to Sections 9, 17, or 19 of this Act, or, 6 continued, reinstated, renewed, disciplined or supervised, 7 subject to such terms, conditions or restrictions who shall 8 fail to comply with such terms, conditions or restrictions, 9 or to complete a required program of care, counseling, or 10 treatment, as determined by the Chief Medical Coordinator or 11 Deputy Medical Coordinators, shall be referred to the 12 Director for a determination as to whether the licensee shall 13 have their license suspended immediately, pending a hearing 14 by the Disciplinary Board. In instances in which the 15 Director immediately suspends a license under this Section, a 16 hearing upon such person's license must be convened by the 17 Disciplinary Board within 15 days after such suspension and 18 completed without appreciable delay. The Disciplinary Board 19 shall have the authority to review the subject physician's 20 record of treatment and counseling regarding the impairment, 21 to the extent permitted by applicable federal statutes and 22 regulations safeguarding the confidentiality of medical 23 records. 24 An individual licensed under this Act, affected under 25 this Section, shall be afforded an opportunity to demonstrate 26 to the Disciplinary Board that they can resume practice in 27 compliance with acceptable and prevailing standards under the 28 provisions of their license. 29 The Department may promulgate rules for the imposition of 30 fines in disciplinary cases, not to exceed $5,000 for each 31 violation of this Act. Fines may be imposed in conjunction 32 with other forms of disciplinary action, but shall not be the 33 exclusive disposition of any disciplinary action arising out 34 of conduct resulting in death or injury to a patient. Any -20- LRB9205361DJgcam09 1 funds collected from such fines shall be deposited in the 2 Medical Disciplinary Fund. 3 (B) The Department shall revoke the license or visiting 4 permit of any person issued under this Act to practice 5 medicine or to treat human ailments without the use of drugs 6 and without operative surgery, who has been convicted a 7 second time of committing any felony under the Illinois 8 Controlled Substances Act, or who has been convicted a second 9 time of committing a Class 1 felony under Sections 8A-3 and 10 8A-6 of the Illinois Public Aid Code. A person whose license 11 or visiting permit is revoked under this subsection B of 12 Section 22 of this Act shall be prohibited from practicing 13 medicine or treating human ailments without the use of drugs 14 and without operative surgery. 15 (C) The Medical Disciplinary Board shall recommend to 16 the Department civil penalties and any other appropriate 17 discipline in disciplinary cases when the Board finds that a 18 physician willfully performed an abortion with actual 19 knowledge that the person upon whom the abortion has been 20 performed is a minor or an incompetent person without notice 21 as required under the Parental Notice of Abortion Act of 22 2001. Upon the Board's recommendation, the Department shall 23 impose, for the first violation, a civil penalty of $1,000 24 and for a second or subsequent violation, a civil penalty of 25 $5,000. The Medical Disciplinary Board shall recommend to the26 Department civil penalties and any other appropriate27 discipline in disciplinary cases when the Board finds that a28 physician willfully performed an abortion with actual29 knowledge that the person upon whom the abortion has been30 performed is a minor or an incompetent person without notice31 as required under the Parental Notice of Abortion Act of32 1995. Upon the Board's recommendation, the Department shall33 impose, for the first violation, a civil penalty of $1,00034 and for a second or subsequent violation, a civil penalty of-21- LRB9205361DJgcam09 1 $5,000.2 (Source: P.A. 89-18, eff. 6-1-95; 89-201, eff. 1-1-96; 3 89-626, eff. 8-9-96; 89-702, eff. 7-1-97; 90-742, eff. 4 8-13-98.) 5 (225 ILCS 60/23) (from Ch. 111, par. 4400-23) 6 Sec. 23. Reports relating to professional conduct and 7 capacity. 8 (A) Entities required to report. 9 (1) Health care institutions. The chief 10 administrator or executive officer of any health care 11 institution licensed by the Illinois Department of Public 12 Health shall report to the Disciplinary Board when any 13 person's clinical privileges are terminated or are 14 restricted based on a final determination, in accordance 15 with that institution's by-laws or rules and regulations, 16 that a person has either committed an act or acts which 17 may directly threaten patient care, and not of an 18 administrative nature, or that a person may be mentally 19 or physically disabled in such a manner as to endanger 20 patients under that person's care. Such officer also 21 shall report if a person accepts voluntary termination or 22 restriction of clinical privileges in lieu of formal 23 action based upon conduct related directly to patient 24 care and not of an administrative nature, or in lieu of 25 formal action seeking to determine whether a person may 26 be mentally or physically disabled in such a manner as to 27 endanger patients under that person's care. The Medical 28 Disciplinary Board shall, by rule, provide for the 29 reporting to it of all instances in which a person, 30 licensed under this Act, who is impaired by reason of 31 age, drug or alcohol abuse or physical or mental 32 impairment, is under supervision and, where appropriate, 33 is in a program of rehabilitation. Such reports shall be -22- LRB9205361DJgcam09 1 strictly confidential and may be reviewed and considered 2 only by the members of the Disciplinary Board, or by 3 authorized staff as provided by rules of the Disciplinary 4 Board. Provisions shall be made for the periodic report 5 of the status of any such person not less than twice 6 annually in order that the Disciplinary Board shall have 7 current information upon which to determine the status of 8 any such person. Such initial and periodic reports of 9 impaired physicians shall not be considered records 10 within the meaning of The State Records Act and shall be 11 disposed of, following a determination by the 12 Disciplinary Board that such reports are no longer 13 required, in a manner and at such time as the 14 Disciplinary Board shall determine by rule. The filing 15 of such reports shall be construed as the filing of a 16 report for purposes of subsection (C) of this Section. 17 (2) Professional associations. The President or 18 chief executive officer of any association or society, of 19 persons licensed under this Act, operating within this 20 State shall report to the Disciplinary Board when the 21 association or society renders a final determination that 22 a person has committed unprofessional conduct related 23 directly to patient care or that a person may be mentally 24 or physically disabled in such a manner as to endanger 25 patients under that person's care. 26 (3) Professional liability insurers. Every 27 insurance company which offers policies of professional 28 liability insurance to persons licensed under this Act, 29 or any other entity which seeks to indemnify the 30 professional liability of a person licensed under this 31 Act, shall report to the Disciplinary Board the 32 settlement of any claim or cause of action, or final 33 judgment rendered in any cause of action, which alleged 34 negligence in the furnishing of medical care by such -23- LRB9205361DJgcam09 1 licensed person when such settlement or final judgment is 2 in favor of the plaintiff. 3 (4) State's Attorneys. The State's Attorney of 4 each county shall report to the Disciplinary Board all 5 instances in which a person licensed under this Act is 6 convicted or otherwise found guilty of the commission of 7 any felony. The State's Attorney of each county may 8 report to the Disciplinary Board through a verified 9 complaint any instance in which the State's Attorney 10 believes that a physician has willfully violated the 11 notice requirements of the Parental Notice of Abortion 12 Act of 2001. The State's Attorney of each county may13 report to the Disciplinary Board through a verified14 complaint any instance in which the State's Attorney15 believes that a physician has willfully violated the16 notice requirements of the Parental Notice of Abortion17 Act of 1995.18 (5) State agencies. All agencies, boards, 19 commissions, departments, or other instrumentalities of 20 the government of the State of Illinois shall report to 21 the Disciplinary Board any instance arising in connection 22 with the operations of such agency, including the 23 administration of any law by such agency, in which a 24 person licensed under this Act has either committed an 25 act or acts which may be a violation of this Act or which 26 may constitute unprofessional conduct related directly to 27 patient care or which indicates that a person licensed 28 under this Act may be mentally or physically disabled in 29 such a manner as to endanger patients under that person's 30 care. 31 (B) Mandatory reporting. All reports required by items 32 (34), (35), and (36) of subsection (A) of Section 22 and by 33 Section 23 shall be submitted to the Disciplinary Board in a 34 timely fashion. The reports shall be filed in writing within -24- LRB9205361DJgcam09 1 60 days after a determination that a report is required under 2 this Act. All reports shall contain the following 3 information: 4 (1) The name, address and telephone number of the 5 person making the report. 6 (2) The name, address and telephone number of the 7 person who is the subject of the report. 8 (3) The name or other means of identification of 9 any patient or patients whose treatment is a subject of 10 the report, provided, however, no medical records may be 11 revealed without the written consent of the patient or 12 patients. 13 (4) A brief description of the facts which gave 14 rise to the issuance of the report, including the dates 15 of any occurrences deemed to necessitate the filing of 16 the report. 17 (5) If court action is involved, the identity of 18 the court in which the action is filed, along with the 19 docket number and date of filing of the action. 20 (6) Any further pertinent information which the 21 reporting party deems to be an aid in the evaluation of 22 the report. 23 The Department shall have the right to inform patients of 24 the right to provide written consent for the Department to 25 obtain copies of hospital and medical records. The 26 Disciplinary Board or Department may exercise the power under 27 Section 38 of this Act to subpoena copies of hospital or 28 medical records in mandatory report cases alleging death or 29 permanent bodily injury when consent to obtain records is not 30 provided by a patient or legal representative. Appropriate 31 rules shall be adopted by the Department with the approval of 32 the Disciplinary Board. 33 When the Department has received written reports 34 concerning incidents required to be reported in items (34), -25- LRB9205361DJgcam09 1 (35), and (36) of subsection (A) of Section 22, the 2 licensee's failure to report the incident to the Department 3 under those items shall not be the sole grounds for 4 disciplinary action. 5 Nothing contained in this Section shall act to in any 6 way, waive or modify the confidentiality of medical reports 7 and committee reports to the extent provided by law. Any 8 information reported or disclosed shall be kept for the 9 confidential use of the Disciplinary Board, the Medical 10 Coordinators, the Disciplinary Board's attorneys, the medical 11 investigative staff, and authorized clerical staff, as 12 provided in this Act, and shall be afforded the same status 13 as is provided information concerning medical studies in Part 14 21 of Article VIII of the Code of Civil Procedure. 15 (C) Immunity from prosecution. Any individual or 16 organization acting in good faith, and not in a wilful and 17 wanton manner, in complying with this Act by providing any 18 report or other information to the Disciplinary Board, or 19 assisting in the investigation or preparation of such 20 information, or by participating in proceedings of the 21 Disciplinary Board, or by serving as a member of the 22 Disciplinary Board, shall not, as a result of such actions, 23 be subject to criminal prosecution or civil damages. 24 (D) Indemnification. Members of the Disciplinary Board, 25 the Medical Coordinators, the Disciplinary Board's attorneys, 26 the medical investigative staff, physicians retained under 27 contract to assist and advise the medical coordinators in the 28 investigation, and authorized clerical staff shall be 29 indemnified by the State for any actions occurring within the 30 scope of services on the Disciplinary Board, done in good 31 faith and not wilful and wanton in nature. The Attorney 32 General shall defend all such actions unless he or she 33 determines either that there would be a conflict of interest 34 in such representation or that the actions complained of were -26- LRB9205361DJgcam09 1 not in good faith or were wilful and wanton. 2 Should the Attorney General decline representation, the 3 member shall have the right to employ counsel of his or her 4 choice, whose fees shall be provided by the State, after 5 approval by the Attorney General, unless there is a 6 determination by a court that the member's actions were not 7 in good faith or were wilful and wanton. 8 The member must notify the Attorney General within 7 days 9 of receipt of notice of the initiation of any action 10 involving services of the Disciplinary Board. Failure to so 11 notify the Attorney General shall constitute an absolute 12 waiver of the right to a defense and indemnification. 13 The Attorney General shall determine within 7 days after 14 receiving such notice, whether he or she will undertake to 15 represent the member. 16 (E) Deliberations of Disciplinary Board. Upon the 17 receipt of any report called for by this Act, other than 18 those reports of impaired persons licensed under this Act 19 required pursuant to the rules of the Disciplinary Board, the 20 Disciplinary Board shall notify in writing, by certified 21 mail, the person who is the subject of the report. Such 22 notification shall be made within 30 days of receipt by the 23 Disciplinary Board of the report. 24 The notification shall include a written notice setting 25 forth the person's right to examine the report. Included in 26 such notification shall be the address at which the file is 27 maintained, the name of the custodian of the reports, and the 28 telephone number at which the custodian may be reached. The 29 person who is the subject of the report shall submit a 30 written statement responding, clarifying, adding to, or 31 proposing the amending of the report previously filed. The 32 statement shall become a permanent part of the file and must 33 be received by the Disciplinary Board no more than 60 days 34 after the date on which the person was notified by the -27- LRB9205361DJgcam09 1 Disciplinary Board of the existence of the original report. 2 The Disciplinary Board shall review all reports received 3 by it, together with any supporting information and 4 responding statements submitted by persons who are the 5 subject of reports. The review by the Disciplinary Board 6 shall be in a timely manner but in no event, shall the 7 Disciplinary Board's initial review of the material contained 8 in each disciplinary file be less than 61 days nor more than 9 180 days after the receipt of the initial report by the 10 Disciplinary Board. 11 When the Disciplinary Board makes its initial review of 12 the materials contained within its disciplinary files, the 13 Disciplinary Board shall, in writing, make a determination as 14 to whether there are sufficient facts to warrant further 15 investigation or action. Failure to make such determination 16 within the time provided shall be deemed to be a 17 determination that there are not sufficient facts to warrant 18 further investigation or action. 19 Should the Disciplinary Board find that there are not 20 sufficient facts to warrant further investigation, or action, 21 the report shall be accepted for filing and the matter shall 22 be deemed closed and so reported to the Director. The 23 Director shall then have 30 days to accept the Medical 24 Disciplinary Board's decision or request further 25 investigation. The Director shall inform the Board in 26 writing of the decision to request further investigation, 27 including the specific reasons for the decision. The 28 individual or entity filing the original report or complaint 29 and the person who is the subject of the report or complaint 30 shall be notified in writing by the Director of any final 31 action on their report or complaint. 32 (F) Summary reports. The Disciplinary Board shall 33 prepare, on a timely basis, but in no event less than one 34 every other month, a summary report of final actions taken -28- LRB9205361DJgcam09 1 upon disciplinary files maintained by the Disciplinary Board. 2 The summary reports shall be sent by the Disciplinary Board 3 to every health care facility licensed by the Illinois 4 Department of Public Health, every professional association 5 and society of persons licensed under this Act functioning on 6 a statewide basis in this State, the American Medical 7 Association, the American Osteopathic Association, the 8 American Chiropractic Association, all insurers providing 9 professional liability insurance to persons licensed under 10 this Act in the State of Illinois, the Federation of State 11 Medical Licensing Boards, and the Illinois Pharmacists 12 Association. 13 (G) Any violation of this Section shall be a Class A 14 misdemeanor. 15 (H) If any such person violates the provisions of this 16 Section an action may be brought in the name of the People of 17 the State of Illinois, through the Attorney General of the 18 State of Illinois, for an order enjoining such violation or 19 for an order enforcing compliance with this Section. Upon 20 filing of a verified petition in such court, the court may 21 issue a temporary restraining order without notice or bond 22 and may preliminarily or permanently enjoin such violation, 23 and if it is established that such person has violated or is 24 violating the injunction, the court may punish the offender 25 for contempt of court. Proceedings under this paragraph 26 shall be in addition to, and not in lieu of, all other 27 remedies and penalties provided for by this Section. 28 (Source: P.A. 89-18, eff. 6-1-95; 89-702, eff. 7-1-97; 29 90-699, eff. 1-1-99.) 30 (720 ILCS 515/Act rep.) 31 Section 95. The Illinois Abortion Parental Consent Act 32 of 1977, which was repealed by Public Act 89-18, is again 33 repealed. -29- LRB9205361DJgcam09 1 (720 ILCS 520/Act rep.) 2 Section 96. The Parental Notice of Abortion Act of 1983, 3 which was repealed by Public Act 89-18, is again repealed. 4 (750 ILCS 70/Act rep.) 5 Section 97. The Parental Notice of Abortion Act of 1995 6 is repealed. 7 Section 99. Effective Date. This Act takes effect upon 8 becoming law.".
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