Bill Text: IL HB5571 | 2019-2020 | 101st General Assembly | Introduced
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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1 | AN ACT concerning regulation.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Nursing Home Care Act is amended by changing | |||||||||||||||||||
5 | Section 2-106.1 as follows:
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6 | (210 ILCS 45/2-106.1)
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7 | Sec. 2-106.1. Drug treatment.
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8 | (a) A resident shall not be given unnecessary drugs. An
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9 | unnecessary drug is any drug used in an excessive dose, | |||||||||||||||||||
10 | including in
duplicative therapy; for excessive duration; | |||||||||||||||||||
11 | without adequate
monitoring; without adequate indications for | |||||||||||||||||||
12 | its use; or in the
presence of adverse consequences that | |||||||||||||||||||
13 | indicate the drugs should be reduced or
discontinued. The | |||||||||||||||||||
14 | Department shall adopt, by rule, the standards
for unnecessary
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15 | drugs
contained in interpretive guidelines issued by the United | |||||||||||||||||||
16 | States Department of
Health and Human Services for the purposes | |||||||||||||||||||
17 | of administering Titles XVIII and XIX of
the Social Security | |||||||||||||||||||
18 | Act.
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19 | (b) Except in the case of an emergency, psychotropic | |||||||||||||||||||
20 | medication shall not be administered without the informed
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21 | consent of the resident or the resident's surrogate decision | |||||||||||||||||||
22 | maker. "Psychotropic medication"
means medication that
is used | |||||||||||||||||||
23 | for or listed as used for psychotropic, antidepressant, |
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1 | antimanic, or
antianxiety behavior modification or behavior | ||||||
2 | management purposes in the latest
editions of the AMA Drug | ||||||
3 | Evaluations or the Physician's Desk Reference. "Emergency" has | ||||||
4 | the same meaning as in Section 1-112 of the Nursing Home Care | ||||||
5 | Act. A facility shall (i) document the alleged emergency in | ||||||
6 | detail, including the facts surrounding the medication's need, | ||||||
7 | and (ii) present this documentation to the resident and the | ||||||
8 | resident's representative. No later than January 1, 2021, the | ||||||
9 | Department shall adopt, by rule, a protocol specifying how | ||||||
10 | informed consent for psychotropic medication may be obtained or | ||||||
11 | refused. The protocol shall require, at a minimum, a discussion | ||||||
12 | between (i) the resident or the resident's surrogate decision | ||||||
13 | maker and (ii) the resident's physician, a registered | ||||||
14 | pharmacist (who is not a dispensing pharmacist for the facility | ||||||
15 | where the resident lives), or a licensed nurse about the | ||||||
16 | possible risks and benefits of a recommended medication and the | ||||||
17 | use of standardized consent forms designated by the Department. | ||||||
18 | The protocol shall include informing the resident, surrogate | ||||||
19 | decision maker, or both of the existence of a copy of: the | ||||||
20 | resident's care plan; the facility policies and procedures | ||||||
21 | adopted in compliance with subsection (b-15) of this Section; | ||||||
22 | and a notification that the most recent of the resident's care | ||||||
23 | plans and the facility's policies are available to the resident | ||||||
24 | or surrogate decision maker upon request. Each form developed | ||||||
25 | by the Department (i) shall be written in plain language, (ii) | ||||||
26 | shall be able to be downloaded from the Department's official |
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1 | website, (iii) shall include information specific to the | ||||||
2 | psychotropic medication for which consent is being sought, and | ||||||
3 | (iv) shall be used for every resident for whom psychotropic | ||||||
4 | drugs are prescribed. The Department shall utilize the rules, | ||||||
5 | protocols, and forms developed and implemented under the | ||||||
6 | Specialized Mental Health Rehabilitation Act of 2013 in effect | ||||||
7 | on the effective date of this amendatory Act of the 101st | ||||||
8 | General Assembly, except to the extent that this Act requires a | ||||||
9 | different procedure, and except that the maximum possible | ||||||
10 | period for informed consent shall be until: (1) a change in the | ||||||
11 | prescription occurs, either as to type of psychotropic | ||||||
12 | medication or an increase in the dosage , unless the physician's | ||||||
13 | order provides for a change in the type of medication or an | ||||||
14 | increase in dosage ; or (2) a resident's care plan changes. The | ||||||
15 | Department may further amend the rules after January 1, 2021 | ||||||
16 | pursuant to existing rulemaking authority. In addition to | ||||||
17 | creating those forms, the Department shall approve the use of | ||||||
18 | any other informed consent forms that meet criteria developed | ||||||
19 | by the Department. At the discretion of the Department, | ||||||
20 | informed consent forms may include side effects that the | ||||||
21 | Department reasonably believes are more common, with a | ||||||
22 | direction that more complete information can be found via a | ||||||
23 | link on the Department's website to third-party websites with | ||||||
24 | more complete information, such as the United States Food and | ||||||
25 | Drug Administration's website. The Department or a facility | ||||||
26 | shall incur no liability for information provided on a consent |
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1 | form so long as the consent form is substantially accurate | ||||||
2 | based upon generally accepted medical principles and if the | ||||||
3 | form includes the website links. | ||||||
4 | Informed consent shall be sought from the resident. For the | ||||||
5 | purposes of this Section, "surrogate decision maker" means an | ||||||
6 | individual representing the resident's interests as permitted | ||||||
7 | by this Section. Informed consent shall be sought from by the | ||||||
8 | resident's guardian of the person if one has been named by a | ||||||
9 | court of competent jurisdiction. In the absence of a | ||||||
10 | court-ordered guardian, informed consent shall be sought from a | ||||||
11 | health care agent under the Illinois Power of Attorney Act who | ||||||
12 | has authority to give consent. If neither a court-ordered | ||||||
13 | guardian of the person nor a health care agent under the | ||||||
14 | Illinois Power of Attorney Act is available and the attending | ||||||
15 | physician determines that the resident lacks capacity to make | ||||||
16 | decisions, informed consent shall be sought from the resident's | ||||||
17 | attorney-in-fact designated under the Mental Health Treatment | ||||||
18 | Preference Declaration Act, if applicable, or the resident's | ||||||
19 | representative. | ||||||
20 | In addition to any other penalty prescribed by law, a | ||||||
21 | facility that is found to have violated this subsection, or the | ||||||
22 | federal certification requirement that informed consent be | ||||||
23 | obtained before administering a psychotropic medication, shall | ||||||
24 | thereafter be required to obtain the signatures of 2 licensed | ||||||
25 | health care professionals on every form purporting to give | ||||||
26 | informed consent for the administration of a psychotropic |
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1 | medication, certifying the personal knowledge of each health | ||||||
2 | care professional that the consent was obtained in compliance | ||||||
3 | with the requirements of this subsection.
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4 | (b-5) A facility must obtain voluntary informed consent, in | ||||||
5 | writing, from a resident or the resident's surrogate decision | ||||||
6 | maker before administering or dispensing a psychotropic | ||||||
7 | medication to that resident. | ||||||
8 | (b-10) No facility shall deny continued residency to a | ||||||
9 | person on the basis of the person's or resident's, or the | ||||||
10 | person's or resident's surrogate decision maker's, refusal of | ||||||
11 | the administration of psychotropic medication, unless the | ||||||
12 | facility can demonstrate that the resident's refusal would | ||||||
13 | place the health and safety of the resident, the facility | ||||||
14 | staff, other residents, or visitors at risk. | ||||||
15 | A facility that alleges that the resident's refusal to | ||||||
16 | consent to the administration of psychotropic medication will | ||||||
17 | place the health and safety of the resident, the facility | ||||||
18 | staff, other residents, or visitors at risk must: (1) document | ||||||
19 | the alleged risk in detail; (2) present this documentation to | ||||||
20 | the resident or the resident's surrogate decision maker, to the | ||||||
21 | Department, and to the Office of the State Long Term Care | ||||||
22 | Ombudsman; and (3) inform the resident or his or her surrogate | ||||||
23 | decision maker of his or her right to appeal to the Department. | ||||||
24 | The documentation of the alleged risk shall include a | ||||||
25 | description of all nonpharmacological or alternative care | ||||||
26 | options attempted and why they were unsuccessful. |
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1 | (b-15) Within 100 days after the effective date of any | ||||||
2 | rules adopted by the Department under subsection (b) of this | ||||||
3 | Section, all facilities shall implement written policies and | ||||||
4 | procedures for compliance with this Section. When the | ||||||
5 | Department conducts its annual survey of a facility, the | ||||||
6 | surveyor may review these written policies and procedures and | ||||||
7 | either: | ||||||
8 | (1) give written notice to the facility that the | ||||||
9 | policies or procedures are sufficient to demonstrate the | ||||||
10 | facility's intent to comply with this Section; or | ||||||
11 | (2) provide written notice to the facility that the | ||||||
12 | proposed policies and procedures are deficient, identify | ||||||
13 | the areas that are deficient, and provide 30 days for the | ||||||
14 | facility to submit amended policies and procedures that | ||||||
15 | demonstrate its intent to comply with this Section. | ||||||
16 | A facility's failure to submit the documentation required | ||||||
17 | under this subsection is sufficient to demonstrate its intent | ||||||
18 | to not comply with this Section and shall be grounds for review | ||||||
19 | by the Department. | ||||||
20 | All facilities must provide training and education on the | ||||||
21 | requirements of this Section to all personnel involved in | ||||||
22 | providing care to residents and train and educate such | ||||||
23 | personnel on the methods and procedures to effectively | ||||||
24 | implement the facility's policies. Training and education | ||||||
25 | provided under this Section must be documented in each | ||||||
26 | personnel file. |
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1 | (b-20) Upon the receipt of a report of any violation of | ||||||
2 | this Section, the Department shall investigate and, upon | ||||||
3 | finding sufficient evidence of a violation of this Section, may | ||||||
4 | proceed with disciplinary action against the licensee of the | ||||||
5 | facility. In any administrative disciplinary action under this | ||||||
6 | subsection, the Department shall have the discretion to | ||||||
7 | determine the gravity of the violation and, taking into account | ||||||
8 | mitigating and aggravating circumstances and facts, may adjust | ||||||
9 | the disciplinary action accordingly. | ||||||
10 | (b-25) A violation of informed consent that, for an | ||||||
11 | individual resident, lasts for 7 days or more under this | ||||||
12 | Section is, at a minimum, a Type "B" violation. A second | ||||||
13 | violation of informed consent within a year from a previous | ||||||
14 | violation in the same facility regardless of the duration of | ||||||
15 | the second violation is, at a minimum, a Type "B" violation. | ||||||
16 | (b-30) Any violation of this Section by a facility may be | ||||||
17 | enforced by an action brought by the Department in the name of | ||||||
18 | the People of Illinois for injunctive relief, civil penalties, | ||||||
19 | or both injunctive relief and civil penalties. The Department | ||||||
20 | may initiate the action upon its own complaint or the complaint | ||||||
21 | of any other interested party. | ||||||
22 | (b-35) Any resident who has been administered a | ||||||
23 | psychotropic medication in violation of this Section may bring | ||||||
24 | an action for injunctive relief, civil damages, and costs and | ||||||
25 | attorney's fees against any facility responsible for the | ||||||
26 | violation. |
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1 | (b-40) An action under this Section must be filed within 2 | ||||||
2 | years of either the date of discovery of the violation that | ||||||
3 | gave rise to the claim or the last date of an instance of a | ||||||
4 | noncompliant administration of psychotropic medication to the | ||||||
5 | resident, whichever is later. | ||||||
6 | (b-45) A facility subject to action under this Section | ||||||
7 | shall be liable for damages of up to $500 for each day after | ||||||
8 | discovery of a violation that the facility violates the | ||||||
9 | requirements of this Section. | ||||||
10 | (b-55) The rights provided for in this Section are | ||||||
11 | cumulative to existing resident rights. No part of this Section | ||||||
12 | shall be interpreted as abridging, abrogating, or otherwise | ||||||
13 | diminishing existing resident rights or causes of action at law | ||||||
14 | or equity. | ||||||
15 | (c) The requirements of
this Section are intended to | ||||||
16 | control in a conflict
with the requirements of Sections 2-102 | ||||||
17 | and 2-107.2
of the Mental Health and Developmental Disabilities | ||||||
18 | Code with respect to the
administration of psychotropic | ||||||
19 | medication.
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20 | (Source: P.A. 101-10, eff. 6-5-19.)
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21 | Section 99. Effective date. This Act takes effect upon | ||||||
22 | becoming law.
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