Bill Text: IL HB5571 | 2019-2020 | 101st General Assembly | Introduced

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Bill Title: Amends the Nursing Home Care Act. Provides that the maximum possible period for informed consent to administration of psychotropic medication shall be until: a change in the prescription occurs, either as to type of psychotropic medication or an increase in the dosage, unless the physician's order provides for a change in the type of medication or an increase in dosage (rather that as to type of psychotropic medication or dosage); or a resident's care plan changes. Requires informed consent to be sought from (rather than by) a resident's guardian of the person if one has been named by a court of competent jurisdiction. Effective immediately.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-06-23 - Rule 19(b) / Re-referred to Rules Committee [HB5571 Detail]

Download: Illinois-2019-HB5571-Introduced.html

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101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 HB5571 Introduced , by Rep. Maurice A. West, II SYNOPSIS AS INTRODUCED:
210 ILCS 45/2-106.1
Amends the Nursing Home Care Act. Provides that the maximum possible period for informed consent to administration of psychotropic medication shall be until: a change in the prescription occurs, either as to type of psychotropic medication or an increase in the dosage, unless the physician's order provides for a change in the type of medication or an increase in dosage (rather that as to type of psychotropic medication or dosage); or a resident's care plan changes. Requires informed consent to be sought from (rather than by) a resident's guardian of the person if one has been named by a court of competent jurisdiction. Effective immediately.
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A BILL FOR
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AN ACT concerning regulation.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Nursing Home Care Act is amended by changing
Section 2-106.1 as follows:
(210 ILCS 45/2-106.1)
Sec. 2-106.1. Drug treatment.
(a) A resident shall not be given unnecessary drugs. An
unnecessary drug is any drug used in an excessive dose,
including in duplicative therapy; for excessive duration;
without adequate monitoring; without adequate indications for
its use; or in the presence of adverse consequences that
indicate the drugs should be reduced or discontinued. The
Department shall adopt, by rule, the standards for unnecessary
drugs contained in interpretive guidelines issued by the United
States Department of Health and Human Services for the purposes
of administering Titles XVIII and XIX of the Social Security
Act.
(b) Except in the case of an emergency, psychotropic
medication shall not be administered without the informed
consent of the resident or the resident's surrogate decision
maker. "Psychotropic medication" means medication that is used
for or listed as used for psychotropic, antidepressant,

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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. No later than January 1, 2021, the
Department shall adopt, by rule, a protocol specifying how
informed consent for psychotropic medication may be obtained or
refused. The protocol shall require, at a minimum, a discussion
between (i) the resident or the resident's surrogate decision
maker and (ii) the resident's physician, a registered
pharmacist (who is not a dispensing pharmacist for the facility
where the resident lives), or a licensed nurse about the
possible risks and benefits of a recommended medication and the
use of standardized consent forms designated by the Department.
The protocol shall include informing the resident, surrogate
decision maker, or both of the existence of a copy of: the
resident's care plan; the facility policies and procedures
adopted in compliance with subsection (b-15) of this Section;
and a notification that the most recent of the resident's care
plans and the facility's policies are available to the resident
or surrogate decision maker upon request. Each form developed
by the Department (i) shall be written in plain language, (ii)
shall be able to be downloaded from the Department's official

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website, (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 in the dosage, unless the physician's
order provides for a change in the type of medication or an
increase in dosage; 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

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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 from 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

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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.
(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.

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(b-15) Within 100 days after the effective date of any
rules adopted by the Department under subsection (b) of this
Section, all facilities shall implement written policies and
procedures for compliance with this Section. When the
Department conducts its annual survey of a facility, the
surveyor may review these written policies and procedures and
either:
(1) give written notice to the facility that the
policies or procedures are sufficient to demonstrate the
facility's intent to comply with this Section; or
(2) provide written notice to the facility that the
proposed policies and procedures are deficient, identify
the areas that are deficient, and provide 30 days for the
facility to submit amended policies and procedures that
demonstrate its intent to comply with this Section.
A facility's failure to submit the documentation required
under this subsection is sufficient to demonstrate its intent
to not comply with this Section and shall be grounds for review
by the Department.
All facilities must provide training and education on the
requirements of this Section to all personnel involved in
providing care to residents and train and educate such
personnel on the methods and procedures to effectively
implement the facility's policies. Training and education
provided under this Section must be documented in each
personnel file.

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(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.

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(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.
(Source: P.A. 101-10, eff. 6-5-19.)
Section 99. Effective date. This Act takes effect upon
becoming law.