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Public Act 102-0646


 

Public Act 0646 102ND GENERAL ASSEMBLY

  
  
  

 


 
Public Act 102-0646
 
SB2265 EnrolledLRB102 13807 CPF 19157 b

    AN ACT concerning regulation.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Nursing Home Care Act is amended by
changing Section 2-106.1 as follows:
 
    (210 ILCS 45/2-106.1)
    Sec. 2-106.1. Drug treatment.
    (a) A resident shall not be given unnecessary drugs. An
unnecessary drug is any drug used in an excessive dose,
including in duplicative therapy; for excessive duration;
without adequate monitoring; without adequate indications for
its use; or in the presence of adverse consequences that
indicate the drugs should be reduced or discontinued. The
Department shall adopt, by rule, the standards for unnecessary
drugs contained in interpretive guidelines issued by the
United States Department of Health and Human Services for the
purposes of administering Titles XVIII and XIX of the Social
Security Act.
    (b) Except in the case of an emergency, psychotropic
medication shall not be administered without the informed
consent of the resident or the resident's surrogate decision
maker. "Psychotropic medication" means medication that is used
for or listed as used for psychotropic, antidepressant,
antimanic, or antianxiety behavior modification or behavior
management purposes in the latest editions of the AMA Drug
Evaluations or the Physician's Desk Reference. "Emergency" has
the same meaning as in Section 1-112 of the Nursing Home Care
Act. A facility shall (i) document the alleged emergency in
detail, including the facts surrounding the medication's need,
and (ii) present this documentation to the resident and the
resident's representative. The No later than January 1, 2021,
the Department shall adopt, by rule, a protocol specifying how
informed consent for psychotropic medication may be obtained
or refused. The protocol shall require, at a minimum, a
discussion between (i) the resident or the resident's
surrogate decision maker and (ii) the resident's physician, a
registered pharmacist (who is not a dispensing pharmacist for
the facility where the resident lives), or a licensed nurse
about the possible risks and benefits of a recommended
medication and the use of standardized consent forms
designated by the Department. The protocol shall include
informing the resident, surrogate decision maker, or both of
the existence of a copy of: the resident's care plan; the
facility policies and procedures adopted in compliance with
subsection (b-15) of this Section; and a notification that the
most recent of the resident's care plans and the facility's
policies are available to the resident or surrogate decision
maker upon request. Each form designated or developed by the
Department (i) shall be written in plain language, (ii) shall
be able to be downloaded from the Department's official
website or another website designated by the Department, (iii)
shall include information specific to the psychotropic
medication for which consent is being sought, and (iv) shall
be used for every resident for whom psychotropic drugs are
prescribed. The Department shall utilize the rules, protocols,
and forms developed and implemented under the Specialized
Mental Health Rehabilitation Act of 2013 in effect on the
effective date of this amendatory Act of the 101st General
Assembly, except to the extent that this Act requires a
different procedure, and except that the maximum possible
period for informed consent shall be until: (1) a change in the
prescription occurs, either as to type of psychotropic
medication or an increase or decrease in dosage, dosage range,
or titration schedule of the prescribed medication that was
not included in the original informed consent; or (2) a
resident's care plan changes. The Department may further amend
the rules after January 1, 2021 pursuant to existing
rulemaking authority. In addition to creating those forms, the
Department shall approve the use of any other informed consent
forms that meet criteria developed by the Department. At the
discretion of the Department, informed consent forms may
include side effects that the Department reasonably believes
are more common, with a direction that more complete
information can be found via a link on the Department's
website to third-party websites with more complete
information, such as the United States Food and Drug
Administration's website. The Department or a facility shall
incur no liability for information provided on a consent form
so long as the consent form is substantially accurate based
upon generally accepted medical principles and if the form
includes the website links.
    Informed consent shall be sought from the resident. For
the purposes of this Section, "surrogate decision maker" means
an individual representing the resident's interests as
permitted by this Section. Informed consent shall be sought by
the resident's guardian of the person if one has been named by
a court of competent jurisdiction. In the absence of a
court-ordered guardian, informed consent shall be sought from
a health care agent under the Illinois Power of Attorney Act
who has authority to give consent. If neither a court-ordered
guardian of the person nor a health care agent under the
Illinois Power of Attorney Act is available and the attending
physician determines that the resident lacks capacity to make
decisions, informed consent shall be sought from the
resident's attorney-in-fact designated under the Mental Health
Treatment Preference Declaration Act, if applicable, or the
resident's representative.
    In addition to any other penalty prescribed by law, a
facility that is found to have violated this subsection, or
the federal certification requirement that informed consent be
obtained before administering a psychotropic medication, shall
thereafter be required to obtain the signatures of 2 licensed
health care professionals on every form purporting to give
informed consent for the administration of a psychotropic
medication, certifying the personal knowledge of each health
care professional that the consent was obtained in compliance
with the requirements of this subsection.
    (b-5) A facility must obtain voluntary informed consent,
in writing, from a resident or the resident's surrogate
decision maker before administering or dispensing a
psychotropic medication to that resident. When informed
consent is not required for a change in dosage, the facility
shall note in the resident's file that the resident was
informed of the dosage change prior to the administration of
the medication or that verbal, written, or electronic notice
has been communicated to the resident's surrogate decision
maker that a change in dosage has occurred.
    (b-10) No facility shall deny continued residency to a
person on the basis of the person's or resident's, or the
person's or resident's surrogate decision maker's, refusal of
the administration of psychotropic medication, unless the
facility can demonstrate that the resident's refusal would
place the health and safety of the resident, the facility
staff, other residents, or visitors at risk.
    A facility that alleges that the resident's refusal to
consent to the administration of psychotropic medication will
place the health and safety of the resident, the facility
staff, other residents, or visitors at risk must: (1) document
the alleged risk in detail; (2) present this documentation to
the resident or the resident's surrogate decision maker, to
the Department, and to the Office of the State Long Term Care
Ombudsman; and (3) inform the resident or his or her surrogate
decision maker of his or her right to appeal to the Department.
The documentation of the alleged risk shall include a
description of all nonpharmacological or alternative care
options attempted and why they were unsuccessful.
    (b-15) Within 100 days after the effective date of any
rules adopted by the Department under subsection (b) of this
Section, all facilities shall implement written policies and
procedures for compliance with this Section. When the
Department conducts its annual survey of a facility, the
surveyor may review these written policies and procedures and
either:
        (1) give written notice to the facility that the
    policies or procedures are sufficient to demonstrate the
    facility's intent to comply with this Section; or
        (2) provide written notice to the facility that the
    proposed policies and procedures are deficient, identify
    the areas that are deficient, and provide 30 days for the
    facility to submit amended policies and procedures that
    demonstrate its intent to comply with this Section.
    A facility's failure to submit the documentation required
under this subsection is sufficient to demonstrate its intent
to not comply with this Section and shall be grounds for review
by the Department.
    All facilities must provide training and education on the
requirements of this Section to all personnel involved in
providing care to residents and train and educate such
personnel on the methods and procedures to effectively
implement the facility's policies. Training and education
provided under this Section must be documented in each
personnel file.
    (b-20) Upon the receipt of a report of any violation of
this Section, the Department shall investigate and, upon
finding sufficient evidence of a violation of this Section,
may proceed with disciplinary action against the licensee of
the facility. In any administrative disciplinary action under
this subsection, the Department shall have the discretion to
determine the gravity of the violation and, taking into
account mitigating and aggravating circumstances and facts,
may adjust the disciplinary action accordingly.
    (b-25) A violation of informed consent that, for an
individual resident, lasts for 7 days or more under this
Section is, at a minimum, a Type "B" violation. A second
violation of informed consent within a year from a previous
violation in the same facility regardless of the duration of
the second violation is, at a minimum, a Type "B" violation.
    (b-30) Any violation of this Section by a facility may be
enforced by an action brought by the Department in the name of
the People of Illinois for injunctive relief, civil penalties,
or both injunctive relief and civil penalties. The Department
may initiate the action upon its own complaint or the
complaint of any other interested party.
    (b-35) Any resident who has been administered a
psychotropic medication in violation of this Section may bring
an action for injunctive relief, civil damages, and costs and
attorney's fees against any facility responsible for the
violation.
    (b-40) An action under this Section must be filed within 2
years of either the date of discovery of the violation that
gave rise to the claim or the last date of an instance of a
noncompliant administration of psychotropic medication to the
resident, whichever is later.
    (b-45) A facility subject to action under this Section
shall be liable for damages of up to $500 for each day after
discovery of a violation that the facility violates the
requirements of this Section.
    (b-55) The rights provided for in this Section are
cumulative to existing resident rights. No part of this
Section shall be interpreted as abridging, abrogating, or
otherwise diminishing existing resident rights or causes of
action at law or equity.
    (c) The requirements of this Section are intended to
control in a conflict with the requirements of Sections 2-102
and 2-107.2 of the Mental Health and Developmental
Disabilities Code with respect to the administration of
psychotropic medication.
    (d) In this Section only, "licensed nurse" means an
advanced practice registered nurse, a registered nurse, or a
licensed practical nurse.
(Source: P.A. 101-10, eff. 6-5-19.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 8/27/2021