Public Act 103-0489
SB1497 EnrolledLRB103 26129 CPF 52485 b SB1497 Enrolled LRB103 26129 CPF 52485 b
SB1497 Enrolled LRB103 26129 CPF 52485 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 Sections 1-112, 2-106, and 2-106.1 as follows:
(210 ILCS 45/1-112) (from Ch. 111 1/2, par. 4151-112)
Sec. 1-112. "Emergency" means a situation, physical
condition, or one or more practices, methods, or operations
which present imminent danger of death or serious physical or
mental harm to residents of a facility and are clinically
documented in the resident's medical record.
(Source: P.A. 81-223.)
(210 ILCS 45/2-106) (from Ch. 111 1/2, par. 4152-106)
Sec. 2-106. Restraints.
(a) For purposes of this Act, (i) a physical restraint is
any manual method or physical or mechanical device, material,
or equipment attached or adjacent to a resident's body that
the resident cannot remove easily and restricts freedom of
movement or normal access to one's body, and . Devices used for
positioning, including but not limited to bed rails, gait
belts, and cushions, shall not be considered to be restraints
for purposes of this Section; (ii) a chemical restraint is any
SB1497 Enrolled LRB103 26129 CPF 52485 b
drug used for discipline or convenience and not required to
treat medical symptoms.
Devices used for positioning, including, but not limited
to, bed rails and gait belts, shall not be considered to be
physical restraints for purposes of this Act unless the device
is used to restrain or otherwise limit the patient's freedom
to move. A device used for positioning must be requested by the
resident or, if the resident is unable to consent, the
resident's guardian or authorized representative, or the need
for that device must be physically demonstrated by the
resident and documented in the resident's care plan. The
physically demonstrated need of the resident for a device used
for positioning must be revisited in every comprehensive
assessment of the resident.
The Department shall by rule, designate certain devices as
restraints, including at least all those devices which have
been determined to be restraints by the United States
Department of Health and Human Services in interpretive
guidelines issued for the purposes of administering Titles
XVIII and XIX of the Social Security Act.
(b) Neither restraints nor confinements shall be employed
for the purpose of punishment or for the convenience of any
facility personnel. No restraints or confinements shall be
employed except as ordered by a physician who documents the
need for such restraints or confinements in the resident's
clinical record.
(c) A restraint may be used only with the informed consent
of the resident, the resident's guardian, or other authorized
representative. A restraint may be used only for specific
periods, if it is the least restrictive means necessary to
attain and maintain the resident's highest practicable
physical, mental or psychosocial well-being, including brief
periods of time to provide necessary life-saving treatment. A
restraint may be used only after consultation with appropriate
health professionals, such as occupational or physical
therapists, and a trial of less restrictive measures has led
to the determination that the use of less restrictive measures
would not attain or maintain the resident's highest
practicable physical, mental or psychosocial well-being.
However, if the resident needs emergency care, restraints may
be used for brief periods to permit medical treatment to
proceed unless the facility has notice that the resident has
previously made a valid refusal of the treatment in question.
(d) A restraint may be applied only by a person trained in
the application of the particular type of restraint.
(e) Whenever a period of use of a restraint is initiated,
the resident shall be advised of his or her right to have a
person or organization of his or her choosing, including the
Guardianship and Advocacy Commission, notified of the use of
the restraint. A recipient who is under guardianship may
request that a person or organization of his or her choosing be
notified of the restraint, whether or not the guardian
approves the notice. If the resident so chooses, the facility
shall make the notification within 24 hours, including any
information about the period of time that the restraint is to
be used. Whenever the Guardianship and Advocacy Commission is
notified that a resident has been restrained, it shall contact
the resident to determine the circumstances of the restraint
and whether further action is warranted.
(f) Whenever a restraint is used on a resident whose
primary mode of communication is sign language, the resident
shall be permitted to have his or her hands free from restraint
for brief periods each hour, except when this freedom may
result in physical harm to the resident or others.
(g) The requirements of this Section are intended to
control in any conflict with the requirements of Sections
1-126 and 2-108 of the Mental Health and Developmental
Disabilities Code.
(Source: P.A. 97-135, eff. 7-14-11.)
(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) State laws, regulations, and policies related to
psychotropic medication are intended to ensure psychotropic
medications are used only when the medication is appropriate
to treat a resident's specific, diagnosed, and documented
condition and the medication is beneficial to the resident, as
demonstrated by monitoring and documentation of the resident's
response to the medication.
(b-3) 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 shall only be given in both
emergency and nonemergency situations if the diagnosis of the
resident supports the benefit of the medication and clinical
documentation in the resident's medical record supports the
benefit of the medication over the contraindications related
to other prescribed medications. "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 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, 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-3) (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; 102-646, eff. 8-27-21.)