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Public Act 92-0358
HB3003 Enrolled LRB9200950ARcd
AN ACT regarding abused and neglected residents of long
term care facilities.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Abused and Neglected Long Term Care
Facility Residents Reporting Act is amended by changing
Sections 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, and 6.8 as follows:
(210 ILCS 30/6.2) (from Ch. 111 1/2, par. 4166.2)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.2. Inspector General.
(a) The Governor shall appoint, and the Senate shall
confirm, an Inspector General who shall function within the
Department of Human Services and report to the Secretary of
Human Services and the Governor. The Inspector General shall
investigate reports of suspected abuse or neglect (as those
terms are defined in Section 3 of this Act) of patients or
residents in any mental health or developmental disabilities
facility operated by the Department of Human Services and
shall have authority to investigate and take immediate action
on reports of abuse or neglect of recipients, whether
patients or residents, in any mental health or developmental
disabilities facility or program that is licensed or
certified by the Department of Human Services (as successor
to the Department of Mental Health and Developmental
Disabilities) or that is funded by the Department of Human
Services (as successor to the Department of Mental Health and
Developmental Disabilities) and is not licensed or certified
by any agency of the State. At the specific, written request
of an agency of the State other than the Department of Human
Services (as successor to the Department of Mental Health and
Developmental Disabilities), the Inspector General may
cooperate in investigating reports of abuse and neglect of
persons with mental illness or persons with developmental
disabilities. The Inspector General shall have no
supervision over or involvement in routine, programmatic,
licensure, or certification operations of the Department of
Human Services or any of its funded agencies.
The Inspector General shall promulgate rules establishing
minimum requirements for reporting allegations of abuse and
neglect and initiating, conducting, and completing
investigations. The promulgated rules shall clearly set
forth that in instances where 2 or more State agencies could
investigate an allegation of abuse or neglect, the Inspector
General shall not conduct an investigation that is redundant
to an investigation conducted by another State agency. The
rules shall establish criteria for determining, based upon
the nature of the allegation, the appropriate method of
investigation, which may include, but need not be limited to,
site visits, telephone contacts, or requests for written
responses from agencies. The rules shall also clarify how
the Office of the Inspector General shall interact with the
licensing unit of the Department of Human Services in
investigations of allegations of abuse or neglect. Any
allegations or investigations of reports made pursuant to
this Act shall remain confidential until a final report is
completed. The resident or patient who allegedly was abused
or neglected and his or her legal guardian shall be informed
by the facility or agency of the report of alleged abuse or
neglect. Final reports regarding unsubstantiated or unfounded
allegations shall remain confidential, except that final
reports may be disclosed pursuant to Section 6 of this Act.
The Inspector General shall be appointed for a term of 4
years.
(b) The Inspector General shall within 24 hours after
receiving a report of suspected abuse or neglect determine
whether the evidence indicates that any possible criminal act
has been committed. If he determines that a possible criminal
act has been committed, or that special expertise is required
in the investigation, he shall immediately notify the
Department of State Police. The Department of State Police
shall investigate any report indicating a possible murder,
rape, or other felony. All investigations conducted by the
Inspector General shall be conducted in a manner designed to
ensure the preservation of evidence for possible use in a
criminal prosecution.
(b-5) The Inspector General shall make a determination
to accept or reject a preliminary report of the investigation
of alleged abuse or neglect based on established
investigative procedures. The facility or agency may request
clarification or reconsideration based on additional
information. For cases where the allegation of abuse or
neglect is substantiated, the Inspector General shall require
the facility or agency to submit a written response. The
written response from a facility or agency shall address in a
concise and reasoned manner the actions that the agency or
facility will take or has taken to protect the resident or
patient from abuse or neglect, prevent reoccurrences, and
eliminate problems identified and shall include
implementation and completion dates for all such action.
(c) The Inspector General shall, within 10 calendar days
after the transmittal date of a completed investigation where
abuse or neglect is substantiated or administrative action is
recommended, provide a complete report on the case to the
Secretary of Human Services and to the agency in which the
abuse or neglect is alleged to have happened. The complete
report shall include a written response from the agency or
facility operated by the State to the Inspector General that
addresses in a concise and reasoned manner the actions that
the agency or facility will take or has taken to protect the
resident or patient from abuse or neglect, prevent
reoccurrences, and eliminate problems identified and shall
include implementation and completion dates for all such
action. The Secretary of Human Services shall accept or
reject the response and establish how the Department will
determine whether the facility or program followed the
approved response. The Secretary may require Department
personnel to visit the facility or agency for training,
technical assistance, programmatic, licensure, or
certification purposes. Administrative action, including
sanctions, may be applied should the Secretary reject the
response or should the facility or agency fail to follow the
approved response. The facility or agency shall inform the
resident or patient and the legal guardian whether the
reported allegation was substantiated, unsubstantiated, or
unfounded. There shall be an appeals process for any person
or agency that is subject to any action based on a
recommendation or recommendations.
(d) The Inspector General may recommend to the
Departments of Public Health and Human Services sanctions to
be imposed against mental health and developmental
disabilities facilities under the jurisdiction of the
Department of Human Services for the protection of residents,
including appointment of on-site monitors or receivers,
transfer or relocation of residents, and closure of units.
The Inspector General may seek the assistance of the Attorney
General or any of the several State's attorneys in imposing
such sanctions.
(e) The Inspector General shall establish and conduct
periodic training programs for Department employees
concerning the prevention and reporting of neglect and abuse.
(f) The Inspector General shall at all times be granted
access to any mental health or developmental disabilities
facility operated by the Department, shall establish and
conduct unannounced site visits to those facilities at least
once annually, and shall be granted access, for the purpose
of investigating a report of abuse or neglect, to any
facility or program funded by the Department that is subject
under the provisions of this Section to investigation by the
Inspector General for a report of abuse or neglect.
(g) Nothing in this Section shall limit investigations
by the Department of Human Services that may otherwise be
required by law or that may be necessary in that Department's
capacity as the central administrative authority responsible
for the operation of State mental health and developmental
disability facilities.
(h) This Section is repealed on January 1, 2004 2002.
(Source: P.A. 90-252, eff. 7-29-97; 90-512, eff. 8-22-97;
90-655, eff. 7-30-98; 91-169, eff. 7-16-99.)
(210 ILCS 30/6.3) (from Ch. 111 1/2, par. 4166.3)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.3. Quality Care Board. There is created, within
the Department of Human Services' Office of the Inspector
General, a Quality Care Board to be composed of 7 members
appointed by the Governor with the advice and consent of the
Senate. One of the members shall be designated as chairman
by the Governor. Of the initial appointments made by the
Governor, 4 Board members shall each be appointed for a term
of 4 years and 3 members shall each be appointed for a term
of 2 years. Upon the expiration of each member's term, a
successor shall be appointed for a term of 4 years. In the
case of a vacancy in the office of any member, the Governor
shall appoint a successor for the remainder of the unexpired
term.
Members appointed by the Governor shall be qualified by
professional knowledge or experience in the area of law,
investigatory techniques, or in the area of care of the
mentally ill or developmentally disabled. Two members
appointed by the Governor shall be persons with a disability
or a parent of a person with a disability. Members shall
serve without compensation, but shall be reimbursed for
expenses incurred in connection with the performance of their
duties as members.
The Board shall meet quarterly, and may hold other
meetings on the call of the chairman. Four members shall
constitute a quorum. The Board may adopt rules and
regulations it deems necessary to govern its own procedures.
This Section is repealed on January 1, 2004 2002.
(Source: P.A. 91-169, eff. 7-16-99.)
(210 ILCS 30/6.4) (from Ch. 111 1/2, par. 4166.4)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.4. Scope and function of the Quality Care Board.
The Board shall monitor and oversee the operations, policies,
and procedures of the Inspector General to assure the prompt
and thorough investigation of allegations of neglect and
abuse. In fulfilling these responsibilities, the Board may
do the following:
(1) Provide independent, expert consultation to the
Inspector General on policies and protocols for
investigations of alleged neglect and abuse.
(2) Review existing regulations relating to the
operation of facilities under the control of the
Department.
(3) Advise the Inspector General as to the content
of training activities authorized under Section 6.2.
(4) Recommend policies concerning methods for
improving the intergovernmental relationships between the
office of the Inspector General and other State or
federal agencies.
This Section is repealed on January 1, 2004 2002.
(Source: P.A. 91-169, eff. 7-16-99.)
(210 ILCS 30/6.5) (from Ch. 111 1/2, par. 4166.5)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.5. Investigators. Within 60 days after the
effective date of this amendatory Act of 1992, the Inspector
General shall establish a comprehensive program to ensure
that every person employed or newly hired to conduct
investigations shall receive training on an on-going basis
concerning investigative techniques, communication skills,
and the appropriate means of contact with persons admitted or
committed to the mental health or developmental disabilities
facilities under the jurisdiction of the Department of Human
Services.
This Section is repealed on January 1, 2004 2002.
(Source: P.A. 91-169, eff. 7-16-99.)
(210 ILCS 30/6.6) (from Ch. 111 1/2, par. 4166.6)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.6. Subpoenas; testimony; penalty. The Inspector
General shall have the power to subpoena witnesses and compel
the production of books and papers pertinent to an
investigation authorized by this Act, provided that the power
to subpoena or to compel the production of books and papers
shall not extend to the person or documents of a labor
organization or its representatives insofar as the person or
documents of a labor organization relate to the function of
representing an employee subject to investigation under this
Act. Mental health records of patients shall be confidential
as provided under the Mental Health and Developmental
Disabilities Confidentiality Act. Any person who fails to
appear in response to a subpoena or to answer any question or
produce any books or papers pertinent to an investigation
under this Act, except as otherwise provided in this Section,
or who knowingly gives false testimony in relation to an
investigation under this Act is guilty of a Class A
misdemeanor.
This Section is repealed on January 1, 2004 2002.
(Source: P.A. 91-169, eff. 7-16-99.)
(210 ILCS 30/6.7) (from Ch. 111 1/2, par. 4166.7)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.7. Annual report. The Inspector General shall
provide to the General Assembly and the Governor, no later
than January 1 of each year, a summary of reports and
investigations made under this Act for the prior fiscal year
with respect to residents of institutions under the
jurisdiction of the Department. The report shall detail the
imposition of sanctions and the final disposition of those
recommendations. The summaries shall not contain any
confidential or identifying information concerning the
subjects of the reports and investigations. The report shall
also include a trend analysis of the number of reported
allegations and their disposition, for each facility and
Department-wide, for the most recent 3-year time period and a
statement, for each facility, of the staffing-to-patient
ratios. The ratios shall include only the number of direct
care staff. The report shall also include detailed
recommended administrative actions and matters for
consideration by the General Assembly.
This Section is repealed on January 1, 2004 2002.
(Source: P.A. 91-169, eff. 7-16-99.)
(210 ILCS 30/6.8) (from Ch. 111 1/2, par. 4166.8)
(Section scheduled to be repealed on January 1, 2002)
Sec. 6.8. Program audit. The Auditor General shall
conduct a biennial program audit of the office of the
Inspector General in relation to the Inspector General's
compliance with this Act. The audit shall specifically
include the Inspector General's effectiveness in
investigating reports of alleged neglect or abuse of
residents in any facility operated by the Department and in
making recommendations for sanctions to the Departments of
Human Services and Public Health. The Auditor General shall
conduct the program audit according to the provisions of the
Illinois State Auditing Act and shall report its findings to
the General Assembly no later than January 1 of each
odd-numbered year.
This Section is repealed on January 1, 2004 2002.
(Source: P.A. 91-169, eff. 7-16-99.).
Section 10. The Mental Health and Developmental
Disabilities Confidentiality Act is amended by changing
Section 10 as follows:
(740 ILCS 110/10) (from Ch. 91 1/2, par. 810)
Sec. 10. (a) Except as provided herein, in any civil,
criminal, administrative, or legislative proceeding, or in
any proceeding preliminary thereto, a recipient, and a
therapist on behalf and in the interest of a recipient, has
the privilege to refuse to disclose and to prevent the
disclosure of the recipient's record or communications.
(1) Records and communications may be disclosed in
a civil, criminal or administrative proceeding in which
the recipient introduces his mental condition or any
aspect of his services received for such condition as an
element of his claim or defense, if and only to the
extent the court in which the proceedings have been
brought, or, in the case of an administrative proceeding,
the court to which an appeal or other action for review
of an administrative determination may be taken, finds,
after in camera examination of testimony or other
evidence, that it is relevant, probative, not unduly
prejudicial or inflammatory, and otherwise clearly
admissible; that other satisfactory evidence is
demonstrably unsatisfactory as evidence of the facts
sought to be established by such evidence; and that
disclosure is more important to the interests of
substantial justice than protection from injury to the
therapist-recipient relationship or to the recipient or
other whom disclosure is likely to harm. Except in a
criminal proceeding in which the recipient, who is
accused in that proceeding, raises the defense of
insanity, no record or communication between a therapist
and a recipient shall be deemed relevant for purposes of
this subsection, except the fact of treatment, the cost
of services and the ultimate diagnosis unless the party
seeking disclosure of the communication clearly
establishes in the trial court a compelling need for its
production. However, for purposes of this Act, in any
action brought or defended under the Illinois Marriage
and Dissolution of Marriage Act, or in any action in
which pain and suffering is an element of the claim,
mental condition shall not be deemed to be introduced
merely by making such claim and shall be deemed to be
introduced only if the recipient or a witness on his
behalf first testifies concerning the record or
communication.
(2) Records or communications may be disclosed in a
civil proceeding after the recipient's death when the
recipient's physical or mental condition has been
introduced as an element of a claim or defense by any
party claiming or defending through or as a beneficiary
of the recipient, provided the court finds, after in
camera examination of the evidence, that it is relevant,
probative, and otherwise clearly admissible; that other
satisfactory evidence is not available regarding the
facts sought to be established by such evidence; and that
disclosure is more important to the interests of
substantial justice than protection from any injury which
disclosure is likely to cause.
(3) In the event of a claim made or an action filed
by a recipient, or, following the recipient's death, by
any party claiming as a beneficiary of the recipient for
injury caused in the course of providing services to such
recipient, the therapist and other persons whose actions
are alleged to have been the cause of injury may disclose
pertinent records and communications to an attorney or
attorneys engaged to render advice about and to provide
representation in connection with such matter and to
persons working under the supervision of such attorney or
attorneys, and may testify as to such records or
communication in any administrative, judicial or
discovery proceeding for the purpose of preparing and
presenting a defense against such claim or action.
(4) Records and communications made to or by a
therapist in the course of examination ordered by a court
for good cause shown may, if otherwise relevant and
admissible, be disclosed in a civil, criminal, or
administrative proceeding in which the recipient is a
party or in appropriate pretrial proceedings, provided
such court has found that the recipient has been as
adequately and as effectively as possible informed before
submitting to such examination that such records and
communications would not be considered confidential or
privileged. Such records and communications shall be
admissible only as to issues involving the recipient's
physical or mental condition and only to the extent that
these are germane to such proceedings.
(5) Records and communications may be disclosed in
a proceeding under the Probate Act of 1975, to determine
a recipient's competency or need for guardianship,
provided that the disclosure is made only with respect to
that issue.
(6) Records and communications may be disclosed
when such are made during treatment which the recipient
is ordered to undergo to render him fit to stand trial on
a criminal charge, provided that the disclosure is made
only with respect to the issue of fitness to stand trial.
(7) Records and communications of the recipient may
be disclosed in any civil or administrative proceeding
involving the validity of or benefits under a life,
accident, health or disability insurance policy or
certificate, or Health Care Service Plan Contract,
insuring the recipient, but only if and to the extent
that the recipient's mental condition, or treatment or
services in connection therewith, is a material element
of any claim or defense of any party, provided that
information sought or disclosed shall not be redisclosed
except in connection with the proceeding in which
disclosure is made.
(8) Records or communications may be disclosed when
such are relevant to a matter in issue in any action
brought under this Act and proceedings preliminary
thereto, provided that any information so disclosed shall
not be utilized for any other purpose nor be redisclosed
except in connection with such action or preliminary
proceedings.
(9) Records and communications of the recipient may
be disclosed in investigations of and trials for homicide
when the disclosure relates directly to the fact or
immediate circumstances of the homicide.
(10) Records and communications of a deceased
recipient may be disclosed to a coroner conducting a
preliminary investigation into the recipient's death
under Section 3-3013 of the Counties Code. However,
records and communications of the deceased recipient
disclosed in an investigation shall be limited solely to
the deceased recipient's records and communications
relating to the factual circumstances of the incident
being investigated in a mental health facility.
(11) Records and communications of a recipient
shall be disclosed in a proceeding where a petition or
motion is filed under the Juvenile Court Act of 1987 and
the recipient is named as a parent, guardian, or legal
custodian of a minor who is the subject of a petition for
wardship as described in Section 2-3 of that Act or a
minor who is the subject of a petition for wardship as
described in Section 2-4 of that Act alleging the minor
is abused, neglected, or dependent or the recipient is
named as a parent of a child who is the subject of a
petition, supplemental petition, or motion to appoint a
guardian with the power to consent to adoption under
Section 2-29 of the Juvenile Court Act of 1987.
(b) Before a disclosure is made under subsection (a),
any party to the proceeding or any other interested person
may request an in camera review of the record or
communications to be disclosed. The court or agency
conducting the proceeding may hold an in camera review on its
own motion. When, contrary to the express wish of the
recipient, the therapist asserts a privilege on behalf and in
the interest of a recipient, the court may require that the
therapist, in an in camera hearing, establish that disclosure
is not in the best interest of the recipient. The court or
agency may prevent disclosure or limit disclosure to the
extent that other admissible evidence is sufficient to
establish the facts in issue. The court or agency may enter
such orders as may be necessary in order to protect the
confidentiality, privacy, and safety of the recipient or of
other persons. Any order to disclose or to not disclose
shall be considered a final order for purposes of appeal and
shall be subject to interlocutory appeal.
(c) A recipient's records and communications may be
disclosed to a duly authorized committee, commission or
subcommittee of the General Assembly which possesses subpoena
and hearing powers, upon a written request approved by a
majority vote of the committee, commission or subcommittee
members. The committee, commission or subcommittee may
request records only for the purposes of investigating or
studying possible violations of recipient rights. The
request shall state the purpose for which disclosure is
sought.
The facility shall notify the recipient, or his guardian,
and therapist in writing of any disclosure request under this
subsection within 5 business days after such request. Such
notification shall also inform the recipient, or guardian,
and therapist of their right to object to the disclosure
within 10 business days after receipt of the notification and
shall include the name, address and telephone number of the
committee, commission or subcommittee member or staff person
with whom an objection shall be filed. If no objection has
been filed within 15 business days after the request for
disclosure, the facility shall disclose the records and
communications to the committee, commission or subcommittee.
If an objection has been filed within 15 business days after
the request for disclosure, the facility shall disclose the
records and communications only after the committee,
commission or subcommittee has permitted the recipient,
guardian or therapist to present his objection in person
before it and has renewed its request for disclosure by a
majority vote of its members.
Disclosure under this subsection shall not occur until
all personally identifiable data of the recipient and
provider are removed from the records and communications.
Disclosure under this subsection shall not occur in any
public proceeding.
(d) No party to any proceeding described under
paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a)
of this Section, nor his or her attorney, shall serve a
subpoena seeking to obtain access to records or
communications under this Act unless the subpoena is
accompanied by a written order issued by a judge, authorizing
the disclosure of the records or the issuance of the
subpoena. No person shall comply with a subpoena for records
or communications under this Act, unless the subpoena is
accompanied by a written order authorizing the issuance of
the subpoena or the disclosure of the records.
(e) When a person has been transported by a peace
officer to a mental health facility, then upon the request of
a peace officer, if the person is allowed to leave the mental
health facility within 48 hours of arrival, excluding
Saturdays, Sundays, and holidays, the facility director shall
notify the local law enforcement authority prior to the
release of the person. The local law enforcement authority
may re-disclose the information as necessary to alert the
appropriate enforcement or prosecuting authority.
(f) A recipient's records and communications shall be
disclosed to the Inspector General of the Department of Human
Services within 10 business days of a request by the
Inspector General in the course of an investigation
authorized by the Abused and Neglected Long Term Care
Facility Residents Reporting Act and applicable rule. The
request shall be in writing and signed by the Inspector
General or his or her designee. The request shall state the
purpose for which disclosure is sought. Any person who
knowingly and willfully refuses to comply with such a request
is guilty of a Class A misdemeanor.
(Source: P.A. 90-608, eff. 6-30-98; 91-726, eff. 6-2-00.)
Section 99. Effective date. This Act takes effect upon
becoming law.
Passed in the General Assembly May 22, 2001.
Approved August 15, 2001.
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