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1 AN ACT concerning regulation.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Nursing Home Care Act is amended by
5 changing Sections 1-112, 2-106, and 2-106.1 as follows:
6 (210 ILCS 45/1-112) (from Ch. 111 1/2, par. 4151-112)
7 Sec. 1-112. "Emergency" means a situation, physical
8 condition, or one or more practices, methods, or operations
9 which present imminent danger of death or serious physical or
10 mental harm to residents of a facility and are clinically
11 documented in the resident's medical record.
12 (Source: P.A. 81-223.)
13 (210 ILCS 45/2-106) (from Ch. 111 1/2, par. 4152-106)
14 Sec. 2-106. Restraints.
15 (a) For purposes of this Act, (i) a physical restraint is
16 any manual method or physical or mechanical device, material,
17 or equipment attached or adjacent to a resident's body that
18 the resident cannot remove easily and restricts freedom of
19 movement or normal access to one's body, and . Devices used for
20 positioning, including but not limited to bed rails, gait
21 belts, and cushions, shall not be considered to be restraints
22 for purposes of this Section; (ii) a chemical restraint is any
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1 drug used for discipline or convenience and not required to
2 treat medical symptoms.
3 Devices used for positioning, including, but not limited
4 to, bed rails and gait belts, shall not be considered to be
5 physical restraints for purposes of this Act unless the device
6 is used to restrain or otherwise limit the patient's freedom
7 to move. A device used for positioning must be requested by the
8 resident or, if the resident is unable to consent, the
9 resident's guardian or authorized representative, or the need
10 for that device must be physically demonstrated by the
11 resident and documented in the resident's care plan. The
12 physically demonstrated need of the resident for a device used
13 for positioning must be revisited in every comprehensive
14 assessment of the resident.
15 The Department shall by rule, designate certain devices as
16 restraints, including at least all those devices which have
17 been determined to be restraints by the United States
18 Department of Health and Human Services in interpretive
19 guidelines issued for the purposes of administering Titles
20 XVIII and XIX of the Social Security Act.
21 (b) Neither restraints nor confinements shall be employed
22 for the purpose of punishment or for the convenience of any
23 facility personnel. No restraints or confinements shall be
24 employed except as ordered by a physician who documents the
25 need for such restraints or confinements in the resident's
26 clinical record.
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1 (c) A restraint may be used only with the informed consent
2 of the resident, the resident's guardian, or other authorized
3 representative. A restraint may be used only for specific
4 periods, if it is the least restrictive means necessary to
5 attain and maintain the resident's highest practicable
6 physical, mental or psychosocial well-being, including brief
7 periods of time to provide necessary life-saving treatment. A
8 restraint may be used only after consultation with appropriate
9 health professionals, such as occupational or physical
10 therapists, and a trial of less restrictive measures has led
11 to the determination that the use of less restrictive measures
12 would not attain or maintain the resident's highest
13 practicable physical, mental or psychosocial well-being.
14 However, if the resident needs emergency care, restraints may
15 be used for brief periods to permit medical treatment to
16 proceed unless the facility has notice that the resident has
17 previously made a valid refusal of the treatment in question.
18 (d) A restraint may be applied only by a person trained in
19 the application of the particular type of restraint.
20 (e) Whenever a period of use of a restraint is initiated,
21 the resident shall be advised of his or her right to have a
22 person or organization of his or her choosing, including the
23 Guardianship and Advocacy Commission, notified of the use of
24 the restraint. A recipient who is under guardianship may
25 request that a person or organization of his or her choosing be
26 notified of the restraint, whether or not the guardian
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1 approves the notice. If the resident so chooses, the facility
2 shall make the notification within 24 hours, including any
3 information about the period of time that the restraint is to
4 be used. Whenever the Guardianship and Advocacy Commission is
5 notified that a resident has been restrained, it shall contact
6 the resident to determine the circumstances of the restraint
7 and whether further action is warranted.
8 (f) Whenever a restraint is used on a resident whose
9 primary mode of communication is sign language, the resident
10 shall be permitted to have his or her hands free from restraint
11 for brief periods each hour, except when this freedom may
12 result in physical harm to the resident or others.
13 (g) The requirements of this Section are intended to
14 control in any conflict with the requirements of Sections
15 1-126 and 2-108 of the Mental Health and Developmental
16 Disabilities Code.
17 (Source: P.A. 97-135, eff. 7-14-11.)
18 (210 ILCS 45/2-106.1)
19 Sec. 2-106.1. Drug treatment.
20 (a) A resident shall not be given unnecessary drugs. An
21 unnecessary drug is any drug used in an excessive dose,
22 including in duplicative therapy; for excessive duration;
23 without adequate monitoring; without adequate indications for
24 its use; or in the presence of adverse consequences that
25 indicate the drugs should be reduced or discontinued. The
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1 Department shall adopt, by rule, the standards for unnecessary
2 drugs contained in interpretive guidelines issued by the
3 United States Department of Health and Human Services for the
4 purposes of administering Titles XVIII and XIX of the Social
5 Security Act.
6 (b) State laws, regulations, and policies related to
7 psychotropic medication are intended to ensure psychotropic
8 medications are used only when the medication is appropriate
9 to treat a resident's specific, diagnosed, and documented
10 condition and the medication is beneficial to the resident, as
11 demonstrated by monitoring and documentation of the resident's
12 response to the medication.
13 (b-3) Except in the case of an emergency, psychotropic
14 medication shall not be administered without the informed
15 consent of the resident or the resident's surrogate decision
16 maker. Psychotropic medication shall only be given in both
17 emergency and nonemergency situations if the diagnosis of the
18 resident supports the benefit of the medication and clinical
19 documentation in the resident's medical record supports the
20 benefit of the medication over the contraindications related
21 to other prescribed medications. "Psychotropic medication"
22 means medication that is used for or listed as used for
23 psychotropic, antidepressant, antimanic, or antianxiety
24 behavior modification or behavior management purposes in the
25 latest editions of the AMA Drug Evaluations or the Physician's
26 Desk Reference. "Emergency" has the same meaning as in Section
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1 1-112 of the Nursing Home Care Act. A facility shall (i)
2 document the alleged emergency in detail, including the facts
3 surrounding the medication's need, and (ii) present this
4 documentation to the resident and the resident's
5 representative. The Department shall adopt, by rule, a
6 protocol specifying how informed consent for psychotropic
7 medication may be obtained or refused. The protocol shall
8 require, at a minimum, a discussion between (i) the resident
9 or the resident's surrogate decision maker and (ii) the
10 resident's physician, a registered pharmacist, or a licensed
11 nurse about the possible risks and benefits of a recommended
12 medication and the use of standardized consent forms
13 designated by the Department. The protocol shall include
14 informing the resident, surrogate decision maker, or both of
15 the existence of a copy of: the resident's care plan; the
16 facility policies and procedures adopted in compliance with
17 subsection (b-15) of this Section; and a notification that the
18 most recent of the resident's care plans and the facility's
19 policies are available to the resident or surrogate decision
20 maker upon request. Each form designated or developed by the
21 Department (i) shall be written in plain language, (ii) shall
22 be able to be downloaded from the Department's official
23 website or another website designated by the Department, (iii)
24 shall include information specific to the psychotropic
25 medication for which consent is being sought, and (iv) shall
26 be used for every resident for whom psychotropic drugs are
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1 prescribed. The Department shall utilize the rules, protocols,
2 and forms developed and implemented under the Specialized
3 Mental Health Rehabilitation Act of 2013 in effect on the
4 effective date of this amendatory Act of the 101st General
5 Assembly, except to the extent that this Act requires a
6 different procedure, and except that the maximum possible
7 period for informed consent shall be until: (1) a change in the
8 prescription occurs, either as to type of psychotropic
9 medication or an increase or decrease in dosage, dosage range,
10 or titration schedule of the prescribed medication that was
11 not included in the original informed consent; or (2) a
12 resident's care plan changes. The Department may further amend
13 the rules after January 1, 2021 pursuant to existing
14 rulemaking authority. In addition to creating those forms, the
15 Department shall approve the use of any other informed consent
16 forms that meet criteria developed by the Department. At the
17 discretion of the Department, informed consent forms may
18 include side effects that the Department reasonably believes
19 are more common, with a direction that more complete
20 information can be found via a link on the Department's
21 website to third-party websites with more complete
22 information, such as the United States Food and Drug
23 Administration's website. The Department or a facility shall
24 incur no liability for information provided on a consent form
25 so long as the consent form is substantially accurate based
26 upon generally accepted medical principles and if the form
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1 includes the website links.
2 Informed consent shall be sought from the resident. For
3 the purposes of this Section, "surrogate decision maker" means
4 an individual representing the resident's interests as
5 permitted by this Section. Informed consent shall be sought by
6 the resident's guardian of the person if one has been named by
7 a court of competent jurisdiction. In the absence of a
8 court-ordered guardian, informed consent shall be sought from
9 a health care agent under the Illinois Power of Attorney Act
10 who has authority to give consent. If neither a court-ordered
11 guardian of the person nor a health care agent under the
12 Illinois Power of Attorney Act is available and the attending
13 physician determines that the resident lacks capacity to make
14 decisions, informed consent shall be sought from the
15 resident's attorney-in-fact designated under the Mental Health
16 Treatment Preference Declaration Act, if applicable, or the
17 resident's representative.
18 In addition to any other penalty prescribed by law, a
19 facility that is found to have violated this subsection, or
20 the federal certification requirement that informed consent be
21 obtained before administering a psychotropic medication, shall
22 thereafter be required to obtain the signatures of 2 licensed
23 health care professionals on every form purporting to give
24 informed consent for the administration of a psychotropic
25 medication, certifying the personal knowledge of each health
26 care professional that the consent was obtained in compliance
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1 with the requirements of this subsection.
2 (b-5) A facility must obtain voluntary informed consent,
3 in writing, from a resident or the resident's surrogate
4 decision maker before administering or dispensing a
5 psychotropic medication to that resident. When informed
6 consent is not required for a change in dosage, the facility
7 shall note in the resident's file that the resident was
8 informed of the dosage change prior to the administration of
9 the medication or that verbal, written, or electronic notice
10 has been communicated to the resident's surrogate decision
11 maker that a change in dosage has occurred.
12 (b-10) No facility shall deny continued residency to a
13 person on the basis of the person's or resident's, or the
14 person's or resident's surrogate decision maker's, refusal of
15 the administration of psychotropic medication, unless the
16 facility can demonstrate that the resident's refusal would
17 place the health and safety of the resident, the facility
18 staff, other residents, or visitors at risk.
19 A facility that alleges that the resident's refusal to
20 consent to the administration of psychotropic medication will
21 place the health and safety of the resident, the facility
22 staff, other residents, or visitors at risk must: (1) document
23 the alleged risk in detail; (2) present this documentation to
24 the resident or the resident's surrogate decision maker, to
25 the Department, and to the Office of the State Long Term Care
26 Ombudsman; and (3) inform the resident or his or her surrogate
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1 decision maker of his or her right to appeal to the Department.
2 The documentation of the alleged risk shall include a
3 description of all nonpharmacological or alternative care
4 options attempted and why they were unsuccessful.
5 (b-15) Within 100 days after the effective date of any
6 rules adopted by the Department under subsection (b-3) (b) of
7 this Section, all facilities shall implement written policies
8 and procedures for compliance with this Section. When the
9 Department conducts its annual survey of a facility, the
10 surveyor may review these written policies and procedures and
11 either:
12 (1) give written notice to the facility that the
13 policies or procedures are sufficient to demonstrate the
14 facility's intent to comply with this Section; or
15 (2) provide written notice to the facility that the
16 proposed policies and procedures are deficient, identify
17 the areas that are deficient, and provide 30 days for the
18 facility to submit amended policies and procedures that
19 demonstrate its intent to comply with this Section.
20 A facility's failure to submit the documentation required
21 under this subsection is sufficient to demonstrate its intent
22 to not comply with this Section and shall be grounds for review
23 by the Department.
24 All facilities must provide training and education on the
25 requirements of this Section to all personnel involved in
26 providing care to residents and train and educate such
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1 personnel on the methods and procedures to effectively
2 implement the facility's policies. Training and education
3 provided under this Section must be documented in each
4 personnel file.
5 (b-20) Upon the receipt of a report of any violation of
6 this Section, the Department shall investigate and, upon
7 finding sufficient evidence of a violation of this Section,
8 may proceed with disciplinary action against the licensee of
9 the facility. In any administrative disciplinary action under
10 this subsection, the Department shall have the discretion to
11 determine the gravity of the violation and, taking into
12 account mitigating and aggravating circumstances and facts,
13 may adjust the disciplinary action accordingly.
14 (b-25) A violation of informed consent that, for an
15 individual resident, lasts for 7 days or more under this
16 Section is, at a minimum, a Type "B" violation. A second
17 violation of informed consent within a year from a previous
18 violation in the same facility regardless of the duration of
19 the second violation is, at a minimum, a Type "B" violation.
20 (b-30) Any violation of this Section by a facility may be
21 enforced by an action brought by the Department in the name of
22 the People of Illinois for injunctive relief, civil penalties,
23 or both injunctive relief and civil penalties. The Department
24 may initiate the action upon its own complaint or the
25 complaint of any other interested party.
26 (b-35) Any resident who has been administered a
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1 psychotropic medication in violation of this Section may bring
2 an action for injunctive relief, civil damages, and costs and
3 attorney's fees against any facility responsible for the
4 violation.
5 (b-40) An action under this Section must be filed within 2
6 years of either the date of discovery of the violation that
7 gave rise to the claim or the last date of an instance of a
8 noncompliant administration of psychotropic medication to the
9 resident, whichever is later.
10 (b-45) A facility subject to action under this Section
11 shall be liable for damages of up to $500 for each day after
12 discovery of a violation that the facility violates the
13 requirements of this Section.
14 (b-55) The rights provided for in this Section are
15 cumulative to existing resident rights. No part of this
16 Section shall be interpreted as abridging, abrogating, or
17 otherwise diminishing existing resident rights or causes of
18 action at law or equity.
19 (c) The requirements of this Section are intended to
20 control in a conflict with the requirements of Sections 2-102
21 and 2-107.2 of the Mental Health and Developmental
22 Disabilities Code with respect to the administration of
23 psychotropic medication.
24 (d) In this Section only, "licensed nurse" means an
25 advanced practice registered nurse, a registered nurse, or a
26 licensed practical nurse.
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1 (Source: P.A. 101-10, eff. 6-5-19; 102-646, eff. 8-27-21.)
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