Illinois 2023-2024 Regular Session

Illinois Senate Bill SB1497 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	Public Act 103-0489
2	1		SB1497 EnrolledLRB103 26129 CPF 52485 b SB1497 Enrolled LRB103 26129 CPF 52485 b
3	2		SB1497 Enrolled LRB103 26129 CPF 52485 b
4		-	AN ACT concerning regulation.
5		-	Be it enacted by the People of the State of Illinois,
6		-	represented in the General Assembly:
7		-	Section 5. The Nursing Home Care Act is amended by
8		-	changing Sections 1-112, 2-106, and 2-106.1 as follows:
9		-	(210 ILCS 45/1-112) (from Ch. 111 1/2, par. 4151-112)
10		-	Sec. 1-112. "Emergency" means a situation, physical
11		-	condition, or one or more practices, methods, or operations
12		-	which present imminent danger of death or serious physical or
13		-	mental harm to residents of a facility and are clinically
14		-	documented in the resident's medical record.
15		-	(Source: P.A. 81-223.)
16		-	(210 ILCS 45/2-106) (from Ch. 111 1/2, par. 4152-106)
17		-	Sec. 2-106. Restraints.
18		-	(a) For purposes of this Act, (i) a physical restraint is
19		-	any manual method or physical or mechanical device, material,
20		-	or equipment attached or adjacent to a resident's body that
21		-	the resident cannot remove easily and restricts freedom of
22		-	movement or normal access to one's body, and . Devices used for
23		-	positioning, including but not limited to bed rails, gait
24		-	belts, and cushions, shall not be considered to be restraints
25		-	for purposes of this Section; (ii) a chemical restraint is any
	3	+	1 AN ACT concerning regulation.
	4	+	2 Be it enacted by the People of the State of Illinois,
	5	+	3 represented in the General Assembly:
	6	+	4 Section 5. The Nursing Home Care Act is amended by
	7	+	5 changing Sections 1-112, 2-106, and 2-106.1 as follows:
	8	+	6 (210 ILCS 45/1-112) (from Ch. 111 1/2, par. 4151-112)
	9	+	7 Sec. 1-112. "Emergency" means a situation, physical
	10	+	8 condition, or one or more practices, methods, or operations
	11	+	9 which present imminent danger of death or serious physical or
	12	+	10 mental harm to residents of a facility and are clinically
	13	+	11 documented in the resident's medical record.
	14	+	12 (Source: P.A. 81-223.)
	15	+	13 (210 ILCS 45/2-106) (from Ch. 111 1/2, par. 4152-106)
	16	+	14 Sec. 2-106. Restraints.
	17	+	15 (a) For purposes of this Act, (i) a physical restraint is
	18	+	16 any manual method or physical or mechanical device, material,
	19	+	17 or equipment attached or adjacent to a resident's body that
	20	+	18 the resident cannot remove easily and restricts freedom of
	21	+	19 movement or normal access to one's body, and . Devices used for
	22	+	20 positioning, including but not limited to bed rails, gait
	23	+	21 belts, and cushions, shall not be considered to be restraints
	24	+	22 for purposes of this Section; (ii) a chemical restraint is any
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32		-	drug used for discipline or convenience and not required to
33		-	treat medical symptoms.
34		-	Devices used for positioning, including, but not limited
35		-	to, bed rails and gait belts, shall not be considered to be
36		-	physical restraints for purposes of this Act unless the device
37		-	is used to restrain or otherwise limit the patient's freedom
38		-	to move. A device used for positioning must be requested by the
39		-	resident or, if the resident is unable to consent, the
40		-	resident's guardian or authorized representative, or the need
41		-	for that device must be physically demonstrated by the
42		-	resident and documented in the resident's care plan. The
43		-	physically demonstrated need of the resident for a device used
44		-	for positioning must be revisited in every comprehensive
45		-	assessment of the resident.
46		-	The Department shall by rule, designate certain devices as
47		-	restraints, including at least all those devices which have
48		-	been determined to be restraints by the United States
49		-	Department of Health and Human Services in interpretive
50		-	guidelines issued for the purposes of administering Titles
51		-	XVIII and XIX of the Social Security Act.
52		-	(b) Neither restraints nor confinements shall be employed
53		-	for the purpose of punishment or for the convenience of any
54		-	facility personnel. No restraints or confinements shall be
55		-	employed except as ordered by a physician who documents the
56		-	need for such restraints or confinements in the resident's
57		-	clinical record.
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	33	+	1 drug used for discipline or convenience and not required to
	34	+	2 treat medical symptoms.
	35	+	3 Devices used for positioning, including, but not limited
	36	+	4 to, bed rails and gait belts, shall not be considered to be
	37	+	5 physical restraints for purposes of this Act unless the device
	38	+	6 is used to restrain or otherwise limit the patient's freedom
	39	+	7 to move. A device used for positioning must be requested by the
	40	+	8 resident or, if the resident is unable to consent, the
	41	+	9 resident's guardian or authorized representative, or the need
	42	+	10 for that device must be physically demonstrated by the
	43	+	11 resident and documented in the resident's care plan. The
	44	+	12 physically demonstrated need of the resident for a device used
	45	+	13 for positioning must be revisited in every comprehensive
	46	+	14 assessment of the resident.
	47	+	15 The Department shall by rule, designate certain devices as
	48	+	16 restraints, including at least all those devices which have
	49	+	17 been determined to be restraints by the United States
	50	+	18 Department of Health and Human Services in interpretive
	51	+	19 guidelines issued for the purposes of administering Titles
	52	+	20 XVIII and XIX of the Social Security Act.
	53	+	21 (b) Neither restraints nor confinements shall be employed
	54	+	22 for the purpose of punishment or for the convenience of any
	55	+	23 facility personnel. No restraints or confinements shall be
	56	+	24 employed except as ordered by a physician who documents the
	57	+	25 need for such restraints or confinements in the resident's
	58	+	26 clinical record.
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59	60
60		-	(c) A restraint may be used only with the informed consent
61		-	of the resident, the resident's guardian, or other authorized
62		-	representative. A restraint may be used only for specific
63		-	periods, if it is the least restrictive means necessary to
64		-	attain and maintain the resident's highest practicable
65		-	physical, mental or psychosocial well-being, including brief
66		-	periods of time to provide necessary life-saving treatment. A
67		-	restraint may be used only after consultation with appropriate
68		-	health professionals, such as occupational or physical
69		-	therapists, and a trial of less restrictive measures has led
70		-	to the determination that the use of less restrictive measures
71		-	would not attain or maintain the resident's highest
72		-	practicable physical, mental or psychosocial well-being.
73		-	However, if the resident needs emergency care, restraints may
74		-	be used for brief periods to permit medical treatment to
75		-	proceed unless the facility has notice that the resident has
76		-	previously made a valid refusal of the treatment in question.
77		-	(d) A restraint may be applied only by a person trained in
78		-	the application of the particular type of restraint.
79		-	(e) Whenever a period of use of a restraint is initiated,
80		-	the resident shall be advised of his or her right to have a
81		-	person or organization of his or her choosing, including the
82		-	Guardianship and Advocacy Commission, notified of the use of
83		-	the restraint. A recipient who is under guardianship may
84		-	request that a person or organization of his or her choosing be
85		-	notified of the restraint, whether or not the guardian
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87	62
88		-	approves the notice. If the resident so chooses, the facility
89		-	shall make the notification within 24 hours, including any
90		-	information about the period of time that the restraint is to
91		-	be used. Whenever the Guardianship and Advocacy Commission is
92		-	notified that a resident has been restrained, it shall contact
93		-	the resident to determine the circumstances of the restraint
94		-	and whether further action is warranted.
95		-	(f) Whenever a restraint is used on a resident whose
96		-	primary mode of communication is sign language, the resident
97		-	shall be permitted to have his or her hands free from restraint
98		-	for brief periods each hour, except when this freedom may
99		-	result in physical harm to the resident or others.
100		-	(g) The requirements of this Section are intended to
101		-	control in any conflict with the requirements of Sections
102		-	1-126 and 2-108 of the Mental Health and Developmental
103		-	Disabilities Code.
104		-	(Source: P.A. 97-135, eff. 7-14-11.)
105		-	(210 ILCS 45/2-106.1)
106		-	Sec. 2-106.1. Drug treatment.
107		-	(a) A resident shall not be given unnecessary drugs. An
108		-	unnecessary drug is any drug used in an excessive dose,
109		-	including in duplicative therapy; for excessive duration;
110		-	without adequate monitoring; without adequate indications for
111		-	its use; or in the presence of adverse consequences that
112		-	indicate the drugs should be reduced or discontinued. The
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115		-	Department shall adopt, by rule, the standards for unnecessary
116		-	drugs contained in interpretive guidelines issued by the
117		-	United States Department of Health and Human Services for the
118		-	purposes of administering Titles XVIII and XIX of the Social
119		-	Security Act.
120		-	(b) State laws, regulations, and policies related to
121		-	psychotropic medication are intended to ensure psychotropic
122		-	medications are used only when the medication is appropriate
123		-	to treat a resident's specific, diagnosed, and documented
124		-	condition and the medication is beneficial to the resident, as
125		-	demonstrated by monitoring and documentation of the resident's
126		-	response to the medication.
127		-	(b-3) Except in the case of an emergency, psychotropic
128		-	medication shall not be administered without the informed
129		-	consent of the resident or the resident's surrogate decision
130		-	maker. Psychotropic medication shall only be given in both
131		-	emergency and nonemergency situations if the diagnosis of the
132		-	resident supports the benefit of the medication and clinical
133		-	documentation in the resident's medical record supports the
134		-	benefit of the medication over the contraindications related
135		-	to other prescribed medications. "Psychotropic medication"
136		-	means medication that is used for or listed as used for
137		-	psychotropic, antidepressant, antimanic, or antianxiety
138		-	behavior modification or behavior management purposes in the
139		-	latest editions of the AMA Drug Evaluations or the Physician's
140		-	Desk Reference. "Emergency" has the same meaning as in Section
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	69	+	1 (c) A restraint may be used only with the informed consent
	70	+	2 of the resident, the resident's guardian, or other authorized
	71	+	3 representative. A restraint may be used only for specific
	72	+	4 periods, if it is the least restrictive means necessary to
	73	+	5 attain and maintain the resident's highest practicable
	74	+	6 physical, mental or psychosocial well-being, including brief
	75	+	7 periods of time to provide necessary life-saving treatment. A
	76	+	8 restraint may be used only after consultation with appropriate
	77	+	9 health professionals, such as occupational or physical
	78	+	10 therapists, and a trial of less restrictive measures has led
	79	+	11 to the determination that the use of less restrictive measures
	80	+	12 would not attain or maintain the resident's highest
	81	+	13 practicable physical, mental or psychosocial well-being.
	82	+	14 However, if the resident needs emergency care, restraints may
	83	+	15 be used for brief periods to permit medical treatment to
	84	+	16 proceed unless the facility has notice that the resident has
	85	+	17 previously made a valid refusal of the treatment in question.
	86	+	18 (d) A restraint may be applied only by a person trained in
	87	+	19 the application of the particular type of restraint.
	88	+	20 (e) Whenever a period of use of a restraint is initiated,
	89	+	21 the resident shall be advised of his or her right to have a
	90	+	22 person or organization of his or her choosing, including the
	91	+	23 Guardianship and Advocacy Commission, notified of the use of
	92	+	24 the restraint. A recipient who is under guardianship may
	93	+	25 request that a person or organization of his or her choosing be
	94	+	26 notified of the restraint, whether or not the guardian
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143		-	1-112 of the Nursing Home Care Act. A facility shall (i)
144		-	document the alleged emergency in detail, including the facts
145		-	surrounding the medication's need, and (ii) present this
146		-	documentation to the resident and the resident's
147		-	representative. The Department shall adopt, by rule, a
148		-	protocol specifying how informed consent for psychotropic
149		-	medication may be obtained or refused. The protocol shall
150		-	require, at a minimum, a discussion between (i) the resident
151		-	or the resident's surrogate decision maker and (ii) the
152		-	resident's physician, a registered pharmacist, or a licensed
153		-	nurse about the possible risks and benefits of a recommended
154		-	medication and the use of standardized consent forms
155		-	designated by the Department. The protocol shall include
156		-	informing the resident, surrogate decision maker, or both of
157		-	the existence of a copy of: the resident's care plan; the
158		-	facility policies and procedures adopted in compliance with
159		-	subsection (b-15) of this Section; and a notification that the
160		-	most recent of the resident's care plans and the facility's
161		-	policies are available to the resident or surrogate decision
162		-	maker upon request. Each form designated or developed by the
163		-	Department (i) shall be written in plain language, (ii) shall
164		-	be able to be downloaded from the Department's official
165		-	website or another website designated by the Department, (iii)
166		-	shall include information specific to the psychotropic
167		-	medication for which consent is being sought, and (iv) shall
168		-	be used for every resident for whom psychotropic drugs are
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170	98
171		-	prescribed. The Department shall utilize the rules, protocols,
172		-	and forms developed and implemented under the Specialized
173		-	Mental Health Rehabilitation Act of 2013 in effect on the
174		-	effective date of this amendatory Act of the 101st General
175		-	Assembly, except to the extent that this Act requires a
176		-	different procedure, and except that the maximum possible
177		-	period for informed consent shall be until: (1) a change in the
178		-	prescription occurs, either as to type of psychotropic
179		-	medication or an increase or decrease in dosage, dosage range,
180		-	or titration schedule of the prescribed medication that was
181		-	not included in the original informed consent; or (2) a
182		-	resident's care plan changes. The Department may further amend
183		-	the rules after January 1, 2021 pursuant to existing
184		-	rulemaking authority. In addition to creating those forms, the
185		-	Department shall approve the use of any other informed consent
186		-	forms that meet criteria developed by the Department. At the
187		-	discretion of the Department, informed consent forms may
188		-	include side effects that the Department reasonably believes
189		-	are more common, with a direction that more complete
190		-	information can be found via a link on the Department's
191		-	website to third-party websites with more complete
192		-	information, such as the United States Food and Drug
193		-	Administration's website. The Department or a facility shall
194		-	incur no liability for information provided on a consent form
195		-	so long as the consent form is substantially accurate based
196		-	upon generally accepted medical principles and if the form
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197	101
198	102
199		-	includes the website links.
200		-	Informed consent shall be sought from the resident. For
201		-	the purposes of this Section, "surrogate decision maker" means
202		-	an individual representing the resident's interests as
203		-	permitted by this Section. Informed consent shall be sought by
204		-	the resident's guardian of the person if one has been named by
205		-	a court of competent jurisdiction. In the absence of a
206		-	court-ordered guardian, informed consent shall be sought from
207		-	a health care agent under the Illinois Power of Attorney Act
208		-	who has authority to give consent. If neither a court-ordered
209		-	guardian of the person nor a health care agent under the
210		-	Illinois Power of Attorney Act is available and the attending
211		-	physician determines that the resident lacks capacity to make
212		-	decisions, informed consent shall be sought from the
213		-	resident's attorney-in-fact designated under the Mental Health
214		-	Treatment Preference Declaration Act, if applicable, or the
215		-	resident's representative.
216		-	In addition to any other penalty prescribed by law, a
217		-	facility that is found to have violated this subsection, or
218		-	the federal certification requirement that informed consent be
219		-	obtained before administering a psychotropic medication, shall
220		-	thereafter be required to obtain the signatures of 2 licensed
221		-	health care professionals on every form purporting to give
222		-	informed consent for the administration of a psychotropic
223		-	medication, certifying the personal knowledge of each health
224		-	care professional that the consent was obtained in compliance
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	105	+	1 approves the notice. If the resident so chooses, the facility
	106	+	2 shall make the notification within 24 hours, including any
	107	+	3 information about the period of time that the restraint is to
	108	+	4 be used. Whenever the Guardianship and Advocacy Commission is
	109	+	5 notified that a resident has been restrained, it shall contact
	110	+	6 the resident to determine the circumstances of the restraint
	111	+	7 and whether further action is warranted.
	112	+	8 (f) Whenever a restraint is used on a resident whose
	113	+	9 primary mode of communication is sign language, the resident
	114	+	10 shall be permitted to have his or her hands free from restraint
	115	+	11 for brief periods each hour, except when this freedom may
	116	+	12 result in physical harm to the resident or others.
	117	+	13 (g) The requirements of this Section are intended to
	118	+	14 control in any conflict with the requirements of Sections
	119	+	15 1-126 and 2-108 of the Mental Health and Developmental
	120	+	16 Disabilities Code.
	121	+	17 (Source: P.A. 97-135, eff. 7-14-11.)
	122	+	18 (210 ILCS 45/2-106.1)
	123	+	19 Sec. 2-106.1. Drug treatment.
	124	+	20 (a) A resident shall not be given unnecessary drugs. An
	125	+	21 unnecessary drug is any drug used in an excessive dose,
	126	+	22 including in duplicative therapy; for excessive duration;
	127	+	23 without adequate monitoring; without adequate indications for
	128	+	24 its use; or in the presence of adverse consequences that
	129	+	25 indicate the drugs should be reduced or discontinued. The
225	130
226	131
227		-	with the requirements of this subsection.
228		-	(b-5) A facility must obtain voluntary informed consent,
229		-	in writing, from a resident or the resident's surrogate
230		-	decision maker before administering or dispensing a
231		-	psychotropic medication to that resident. When informed
232		-	consent is not required for a change in dosage, the facility
233		-	shall note in the resident's file that the resident was
234		-	informed of the dosage change prior to the administration of
235		-	the medication or that verbal, written, or electronic notice
236		-	has been communicated to the resident's surrogate decision
237		-	maker that a change in dosage has occurred.
238		-	(b-10) No facility shall deny continued residency to a
239		-	person on the basis of the person's or resident's, or the
240		-	person's or resident's surrogate decision maker's, refusal of
241		-	the administration of psychotropic medication, unless the
242		-	facility can demonstrate that the resident's refusal would
243		-	place the health and safety of the resident, the facility
244		-	staff, other residents, or visitors at risk.
245		-	A facility that alleges that the resident's refusal to
246		-	consent to the administration of psychotropic medication will
247		-	place the health and safety of the resident, the facility
248		-	staff, other residents, or visitors at risk must: (1) document
249		-	the alleged risk in detail; (2) present this documentation to
250		-	the resident or the resident's surrogate decision maker, to
251		-	the Department, and to the Office of the State Long Term Care
252		-	Ombudsman; and (3) inform the resident or his or her surrogate
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254	133
255		-	decision maker of his or her right to appeal to the Department.
256		-	The documentation of the alleged risk shall include a
257		-	description of all nonpharmacological or alternative care
258		-	options attempted and why they were unsuccessful.
259		-	(b-15) Within 100 days after the effective date of any
260		-	rules adopted by the Department under subsection (b-3) (b) of
261		-	this Section, all facilities shall implement written policies
262		-	and procedures for compliance with this Section. When the
263		-	Department conducts its annual survey of a facility, the
264		-	surveyor may review these written policies and procedures and
265		-	either:
266		-	(1) give written notice to the facility that the
267		-	policies or procedures are sufficient to demonstrate the
268		-	facility's intent to comply with this Section; or
269		-	(2) provide written notice to the facility that the
270		-	proposed policies and procedures are deficient, identify
271		-	the areas that are deficient, and provide 30 days for the
272		-	facility to submit amended policies and procedures that
273		-	demonstrate its intent to comply with this Section.
274		-	A facility's failure to submit the documentation required
275		-	under this subsection is sufficient to demonstrate its intent
276		-	to not comply with this Section and shall be grounds for review
277		-	by the Department.
278		-	All facilities must provide training and education on the
279		-	requirements of this Section to all personnel involved in
280		-	providing care to residents and train and educate such
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283		-	personnel on the methods and procedures to effectively
284		-	implement the facility's policies. Training and education
285		-	provided under this Section must be documented in each
286		-	personnel file.
287		-	(b-20) Upon the receipt of a report of any violation of
288		-	this Section, the Department shall investigate and, upon
289		-	finding sufficient evidence of a violation of this Section,
290		-	may proceed with disciplinary action against the licensee of
291		-	the facility. In any administrative disciplinary action under
292		-	this subsection, the Department shall have the discretion to
293		-	determine the gravity of the violation and, taking into
294		-	account mitigating and aggravating circumstances and facts,
295		-	may adjust the disciplinary action accordingly.
296		-	(b-25) A violation of informed consent that, for an
297		-	individual resident, lasts for 7 days or more under this
298		-	Section is, at a minimum, a Type "B" violation. A second
299		-	violation of informed consent within a year from a previous
300		-	violation in the same facility regardless of the duration of
301		-	the second violation is, at a minimum, a Type "B" violation.
302		-	(b-30) Any violation of this Section by a facility may be
303		-	enforced by an action brought by the Department in the name of
304		-	the People of Illinois for injunctive relief, civil penalties,
305		-	or both injunctive relief and civil penalties. The Department
306		-	may initiate the action upon its own complaint or the
307		-	complaint of any other interested party.
308		-	(b-35) Any resident who has been administered a
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	140	+	1 Department shall adopt, by rule, the standards for unnecessary
	141	+	2 drugs contained in interpretive guidelines issued by the
	142	+	3 United States Department of Health and Human Services for the
	143	+	4 purposes of administering Titles XVIII and XIX of the Social
	144	+	5 Security Act.
	145	+	6 (b) State laws, regulations, and policies related to
	146	+	7 psychotropic medication are intended to ensure psychotropic
	147	+	8 medications are used only when the medication is appropriate
	148	+	9 to treat a resident's specific, diagnosed, and documented
	149	+	10 condition and the medication is beneficial to the resident, as
	150	+	11 demonstrated by monitoring and documentation of the resident's
	151	+	12 response to the medication.
	152	+	13 (b-3) Except in the case of an emergency, psychotropic
	153	+	14 medication shall not be administered without the informed
	154	+	15 consent of the resident or the resident's surrogate decision
	155	+	16 maker. Psychotropic medication shall only be given in both
	156	+	17 emergency and nonemergency situations if the diagnosis of the
	157	+	18 resident supports the benefit of the medication and clinical
	158	+	19 documentation in the resident's medical record supports the
	159	+	20 benefit of the medication over the contraindications related
	160	+	21 to other prescribed medications. "Psychotropic medication"
	161	+	22 means medication that is used for or listed as used for
	162	+	23 psychotropic, antidepressant, antimanic, or antianxiety
	163	+	24 behavior modification or behavior management purposes in the
	164	+	25 latest editions of the AMA Drug Evaluations or the Physician's
	165	+	26 Desk Reference. "Emergency" has the same meaning as in Section
309	166
310	167
311		-	psychotropic medication in violation of this Section may bring
312		-	an action for injunctive relief, civil damages, and costs and
313		-	attorney's fees against any facility responsible for the
314		-	violation.
315		-	(b-40) An action under this Section must be filed within 2
316		-	years of either the date of discovery of the violation that
317		-	gave rise to the claim or the last date of an instance of a
318		-	noncompliant administration of psychotropic medication to the
319		-	resident, whichever is later.
320		-	(b-45) A facility subject to action under this Section
321		-	shall be liable for damages of up to $500 for each day after
322		-	discovery of a violation that the facility violates the
323		-	requirements of this Section.
324		-	(b-55) The rights provided for in this Section are
325		-	cumulative to existing resident rights. No part of this
326		-	Section shall be interpreted as abridging, abrogating, or
327		-	otherwise diminishing existing resident rights or causes of
328		-	action at law or equity.
329		-	(c) The requirements of this Section are intended to
330		-	control in a conflict with the requirements of Sections 2-102
331		-	and 2-107.2 of the Mental Health and Developmental
332		-	Disabilities Code with respect to the administration of
333		-	psychotropic medication.
334		-	(d) In this Section only, "licensed nurse" means an
335		-	advanced practice registered nurse, a registered nurse, or a
336		-	licensed practical nurse.
337	168
338	169
339		-	(Source: P.A. 101-10, eff. 6-5-19; 102-646, eff. 8-27-21.)
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	176	+	1 1-112 of the Nursing Home Care Act. A facility shall (i)
	177	+	2 document the alleged emergency in detail, including the facts
	178	+	3 surrounding the medication's need, and (ii) present this
	179	+	4 documentation to the resident and the resident's
	180	+	5 representative. The Department shall adopt, by rule, a
	181	+	6 protocol specifying how informed consent for psychotropic
	182	+	7 medication may be obtained or refused. The protocol shall
	183	+	8 require, at a minimum, a discussion between (i) the resident
	184	+	9 or the resident's surrogate decision maker and (ii) the
	185	+	10 resident's physician, a registered pharmacist, or a licensed
	186	+	11 nurse about the possible risks and benefits of a recommended
	187	+	12 medication and the use of standardized consent forms
	188	+	13 designated by the Department. The protocol shall include
	189	+	14 informing the resident, surrogate decision maker, or both of
	190	+	15 the existence of a copy of: the resident's care plan; the
	191	+	16 facility policies and procedures adopted in compliance with
	192	+	17 subsection (b-15) of this Section; and a notification that the
	193	+	18 most recent of the resident's care plans and the facility's
	194	+	19 policies are available to the resident or surrogate decision
	195	+	20 maker upon request. Each form designated or developed by the
	196	+	21 Department (i) shall be written in plain language, (ii) shall
	197	+	22 be able to be downloaded from the Department's official
	198	+	23 website or another website designated by the Department, (iii)
	199	+	24 shall include information specific to the psychotropic
	200	+	25 medication for which consent is being sought, and (iv) shall
	201	+	26 be used for every resident for whom psychotropic drugs are
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	212	+	1 prescribed. The Department shall utilize the rules, protocols,
	213	+	2 and forms developed and implemented under the Specialized
	214	+	3 Mental Health Rehabilitation Act of 2013 in effect on the
	215	+	4 effective date of this amendatory Act of the 101st General
	216	+	5 Assembly, except to the extent that this Act requires a
	217	+	6 different procedure, and except that the maximum possible
	218	+	7 period for informed consent shall be until: (1) a change in the
	219	+	8 prescription occurs, either as to type of psychotropic
	220	+	9 medication or an increase or decrease in dosage, dosage range,
	221	+	10 or titration schedule of the prescribed medication that was
	222	+	11 not included in the original informed consent; or (2) a
	223	+	12 resident's care plan changes. The Department may further amend
	224	+	13 the rules after January 1, 2021 pursuant to existing
	225	+	14 rulemaking authority. In addition to creating those forms, the
	226	+	15 Department shall approve the use of any other informed consent
	227	+	16 forms that meet criteria developed by the Department. At the
	228	+	17 discretion of the Department, informed consent forms may
	229	+	18 include side effects that the Department reasonably believes
	230	+	19 are more common, with a direction that more complete
	231	+	20 information can be found via a link on the Department's
	232	+	21 website to third-party websites with more complete
	233	+	22 information, such as the United States Food and Drug
	234	+	23 Administration's website. The Department or a facility shall
	235	+	24 incur no liability for information provided on a consent form
	236	+	25 so long as the consent form is substantially accurate based
	237	+	26 upon generally accepted medical principles and if the form
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	248	+	1 includes the website links.
	249	+	2 Informed consent shall be sought from the resident. For
	250	+	3 the purposes of this Section, "surrogate decision maker" means
	251	+	4 an individual representing the resident's interests as
	252	+	5 permitted by this Section. Informed consent shall be sought by
	253	+	6 the resident's guardian of the person if one has been named by
	254	+	7 a court of competent jurisdiction. In the absence of a
	255	+	8 court-ordered guardian, informed consent shall be sought from
	256	+	9 a health care agent under the Illinois Power of Attorney Act
	257	+	10 who has authority to give consent. If neither a court-ordered
	258	+	11 guardian of the person nor a health care agent under the
	259	+	12 Illinois Power of Attorney Act is available and the attending
	260	+	13 physician determines that the resident lacks capacity to make
	261	+	14 decisions, informed consent shall be sought from the
	262	+	15 resident's attorney-in-fact designated under the Mental Health
	263	+	16 Treatment Preference Declaration Act, if applicable, or the
	264	+	17 resident's representative.
	265	+	18 In addition to any other penalty prescribed by law, a
	266	+	19 facility that is found to have violated this subsection, or
	267	+	20 the federal certification requirement that informed consent be
	268	+	21 obtained before administering a psychotropic medication, shall
	269	+	22 thereafter be required to obtain the signatures of 2 licensed
	270	+	23 health care professionals on every form purporting to give
	271	+	24 informed consent for the administration of a psychotropic
	272	+	25 medication, certifying the personal knowledge of each health
	273	+	26 care professional that the consent was obtained in compliance
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	284	+	1 with the requirements of this subsection.
	285	+	2 (b-5) A facility must obtain voluntary informed consent,
	286	+	3 in writing, from a resident or the resident's surrogate
	287	+	4 decision maker before administering or dispensing a
	288	+	5 psychotropic medication to that resident. When informed
	289	+	6 consent is not required for a change in dosage, the facility
	290	+	7 shall note in the resident's file that the resident was
	291	+	8 informed of the dosage change prior to the administration of
	292	+	9 the medication or that verbal, written, or electronic notice
	293	+	10 has been communicated to the resident's surrogate decision
	294	+	11 maker that a change in dosage has occurred.
	295	+	12 (b-10) No facility shall deny continued residency to a
	296	+	13 person on the basis of the person's or resident's, or the
	297	+	14 person's or resident's surrogate decision maker's, refusal of
	298	+	15 the administration of psychotropic medication, unless the
	299	+	16 facility can demonstrate that the resident's refusal would
	300	+	17 place the health and safety of the resident, the facility
	301	+	18 staff, other residents, or visitors at risk.
	302	+	19 A facility that alleges that the resident's refusal to
	303	+	20 consent to the administration of psychotropic medication will
	304	+	21 place the health and safety of the resident, the facility
	305	+	22 staff, other residents, or visitors at risk must: (1) document
	306	+	23 the alleged risk in detail; (2) present this documentation to
	307	+	24 the resident or the resident's surrogate decision maker, to
	308	+	25 the Department, and to the Office of the State Long Term Care
	309	+	26 Ombudsman; and (3) inform the resident or his or her surrogate
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	320	+	1 decision maker of his or her right to appeal to the Department.
	321	+	2 The documentation of the alleged risk shall include a
	322	+	3 description of all nonpharmacological or alternative care
	323	+	4 options attempted and why they were unsuccessful.
	324	+	5 (b-15) Within 100 days after the effective date of any
	325	+	6 rules adopted by the Department under subsection (b-3) (b) of
	326	+	7 this Section, all facilities shall implement written policies
	327	+	8 and procedures for compliance with this Section. When the
	328	+	9 Department conducts its annual survey of a facility, the
	329	+	10 surveyor may review these written policies and procedures and
	330	+	11 either:
	331	+	12 (1) give written notice to the facility that the
	332	+	13 policies or procedures are sufficient to demonstrate the
	333	+	14 facility's intent to comply with this Section; or
	334	+	15 (2) provide written notice to the facility that the
	335	+	16 proposed policies and procedures are deficient, identify
	336	+	17 the areas that are deficient, and provide 30 days for the
	337	+	18 facility to submit amended policies and procedures that
	338	+	19 demonstrate its intent to comply with this Section.
	339	+	20 A facility's failure to submit the documentation required
	340	+	21 under this subsection is sufficient to demonstrate its intent
	341	+	22 to not comply with this Section and shall be grounds for review
	342	+	23 by the Department.
	343	+	24 All facilities must provide training and education on the
	344	+	25 requirements of this Section to all personnel involved in
	345	+	26 providing care to residents and train and educate such
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	356	+	1 personnel on the methods and procedures to effectively
	357	+	2 implement the facility's policies. Training and education
	358	+	3 provided under this Section must be documented in each
	359	+	4 personnel file.
	360	+	5 (b-20) Upon the receipt of a report of any violation of
	361	+	6 this Section, the Department shall investigate and, upon
	362	+	7 finding sufficient evidence of a violation of this Section,
	363	+	8 may proceed with disciplinary action against the licensee of
	364	+	9 the facility. In any administrative disciplinary action under
	365	+	10 this subsection, the Department shall have the discretion to
	366	+	11 determine the gravity of the violation and, taking into
	367	+	12 account mitigating and aggravating circumstances and facts,
	368	+	13 may adjust the disciplinary action accordingly.
	369	+	14 (b-25) A violation of informed consent that, for an
	370	+	15 individual resident, lasts for 7 days or more under this
	371	+	16 Section is, at a minimum, a Type "B" violation. A second
	372	+	17 violation of informed consent within a year from a previous
	373	+	18 violation in the same facility regardless of the duration of
	374	+	19 the second violation is, at a minimum, a Type "B" violation.
	375	+	20 (b-30) Any violation of this Section by a facility may be
	376	+	21 enforced by an action brought by the Department in the name of
	377	+	22 the People of Illinois for injunctive relief, civil penalties,
	378	+	23 or both injunctive relief and civil penalties. The Department
	379	+	24 may initiate the action upon its own complaint or the
	380	+	25 complaint of any other interested party.
	381	+	26 (b-35) Any resident who has been administered a
	382	+
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	392	+	1 psychotropic medication in violation of this Section may bring
	393	+	2 an action for injunctive relief, civil damages, and costs and
	394	+	3 attorney's fees against any facility responsible for the
	395	+	4 violation.
	396	+	5 (b-40) An action under this Section must be filed within 2
	397	+	6 years of either the date of discovery of the violation that
	398	+	7 gave rise to the claim or the last date of an instance of a
	399	+	8 noncompliant administration of psychotropic medication to the
	400	+	9 resident, whichever is later.
	401	+	10 (b-45) A facility subject to action under this Section
	402	+	11 shall be liable for damages of up to $500 for each day after
	403	+	12 discovery of a violation that the facility violates the
	404	+	13 requirements of this Section.
	405	+	14 (b-55) The rights provided for in this Section are
	406	+	15 cumulative to existing resident rights. No part of this
	407	+	16 Section shall be interpreted as abridging, abrogating, or
	408	+	17 otherwise diminishing existing resident rights or causes of
	409	+	18 action at law or equity.
	410	+	19 (c) The requirements of this Section are intended to
	411	+	20 control in a conflict with the requirements of Sections 2-102
	412	+	21 and 2-107.2 of the Mental Health and Developmental
	413	+	22 Disabilities Code with respect to the administration of
	414	+	23 psychotropic medication.
	415	+	24 (d) In this Section only, "licensed nurse" means an
	416	+	25 advanced practice registered nurse, a registered nurse, or a
	417	+	26 licensed practical nurse.
	418	+
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	428	+	1 (Source: P.A. 101-10, eff. 6-5-19; 102-646, eff. 8-27-21.)
	429	+
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